Table of Authorities

Adams v. Phillip Morris, Inc.,

67 F.3d 580 (6th Cir. 1995)..................................................... 26

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974)........................................................ 14, 15, 26

Babb v. Marysville Anesthesiologists, P.C.,

942 F.3d 308 (6th Cir. 2019)...................................... 26, 27, 28

Brooklyn Sav. Bank v. O’Neil,

324 U.S. 697 (1945)................................................................... 15

Davis v. Mills,

194 U.S. 451 (1904)................................................................... 15

EEOC v. Waffle House, Inc.,

534 U.S. 279 (2002)................................................................... 12

Ferrari v. Ford Motor Co.,

826 F.3d 885 (6th Cir. 2016)........................................... 6, 7, 28

Griggs v. Duke Power Co.,

401 U.S. 424 (1971)................................................................... 16

Gruener v. Ohio Cas. Ins. Co.,

510 F.3d 661 (6th Cir. 2008)................................................... 11

Logan v. MGM Grand Detroit Casino,

299 F. Supp. 3d 874 (E.D. Mich. 2018).................................... 8

Logan v. MGM Grand Detroit Casino,

939 F.3d 824 (6th Cir. 2019)........................................... passim

Mosby-Meachem v. Memphis Light, Gas & Water Div.,

883 F.3d 595 (6th Cir. 2018)................................................... 12

Myers v. W.-S. Life Ins. Co.,

849 F.2d 259 (6th Cir. 1988)........................................ 8, 17, 18

Occidental Life Ins. Co. of Cal. v. EEOC,

432 U.S. 355 (1977)............................................................ 16, 17

Oubre v. Entergy Operations, Inc.,

522 U.S. 422 (1998)................................................................... 25

Ross v. ITT Cleveland Motion Control,

No. 1-09-cv-2220, 2010 WL 779999 (N.D. Ohio Mar. 2, 2010)......................................................................................................... 4

Thomas v. Allstate Ins. Co.,

974 F.2d 706 (6th Cir. 1992)........................................ 8, 17, 18

Thurman v. DaimlerChrysler, Inc.,

397 F.3d 352 (6th Cir. 2004)............................................... 8, 17

Statutes

Older Workers Benefit Protection Act,

Pub. L. No. 101-433, § 201, 104 Stat. 978 (1990)................ 25

Fair Labor Standards Act of 1938,

29 U.S.C. §§ 201 et seq............................................................. 15

Equal Pay Act,

29 U.S.C. § 206(d)..................................................................... 15

Age Discrimination in Employment Act of 1967,

29 U.S.C. §§ 621 et seq............................................................... 1

29 U.S.C. § 626..................................................................................... 21

29 U.S.C. § 626(d).................................................................................. 9

29 U.S.C. § 626(d)(1)..................................................................... 20, 21

29 U.S.C. § 626(d)(2)........................................................................... 20

29 U.S.C. § 626(e)................................................................................. 22

29 U.S.C. § 626(f)................................................................................. 25

29 U.S.C. § 626(f)(1)(C)....................................................................... 25

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq....................................................... 1, 5

42 U.S.C. § 2000e-5(b)......................................................................... 20

42 U.S.C. § 2000e-5(e)(1).................................................................... 20

42 U.S.C. § 2000e-5(f)(1).......................................................... 9, 17, 22

Americans with Disabilities Act of 1990,

42 U.S.C. §§ 12101 et seq........................................................... 1

42 U.S.C. § 12102(3)(A).................................................................. 7, 27

42 U.S.C. § 12117(a)............................................................................ 12

Regulations

29 C.F.R. § 1601.28(a).................................................................. 22, 24

29 C.F.R. § 1601.28(b)......................................................................... 22

29 C.F.R. § 1601.28(c)......................................................................... 22

29 C.F.R. § 1626.15(b)......................................................................... 21

29 C.F.R. § 1626.18(b)......................................................................... 21

29 C.F.R. § 1630.2(i)............................................................................ 11

Rules

Fed. R. App. P. 29(a)(2)......................................................................... 2

Statement of Interest

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing federal prohibitions on employment discrimination, including the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (“ADA”), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (“ADEA”). In this case, although the plaintiff filed suit under the ADA and ADEA within the limitations period Congress set out in each statute, the district court ruled that her claims were nevertheless untimely because of an agreement purporting to limit the time period for her to file any claims against the employer.

In so ruling, the court disregarded this Court’s precedent holding that such agreements are unenforceable as to claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. See Logan v. MGM Grand Detroit Casino, 939 F.3d 824 (6th Cir. 2019). Although Logan itself did not address the enforceability of such agreements as to claims brought under the ADA or the ADEA, the same considerations Logan relied on regarding Title VII are equally applicable to the ADA and the ADEA. Because of the importance of these issues to the effective administration and enforcement of the ADA and the ADEA, the EEOC respectfully offers its views to the Court. As a federal agency, the EEOC is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a)(2).

Statement of the Issues

1. Whether contractual clauses that purport to shorten the limitations period of the ADA are not enforceable.

2. Whether contractual clauses that purport to shorten the limitations period of the ADEA are not enforceable.

3. Whether the district court identified an outdated standard for regarded-as coverage under the ADA.

Statement of the Case

A. Statement of Facts

Plaintiff-Appellant Cassandra Thompson is African-American, suffers from arthritis, and at the time relevant to this appeal was fifty-two years old. Complaint, R.1 at 3, PageID#3. In July 2016, Defendant-Appellee Fresh Products, LLC (“Fresh”), hired Thompson as a production worker. Summ. J. Order (“Order”), R.57 at 2, PageID#724. Fresh’s production facility operated on a schedule of three eight-hour shifts. Order, R.57 at 2, PageID#724. Shortly after her hire, Thompson was placed on the third shift. Order, R.57 at 2, PageID#724.

When she began working for Fresh, Thompson signed a “Handbook Acknowledgment” that provided, in relevant part:

In consideration of my employment or continued employment, I agree that any claim or lawsuit arising out of my employment with Fresh Products must be filed no more than six (6) months after the date of the employment action that is [the] subject of the claim or lawsuit. While I understand that the statute of limitations for claims arising out of an employment action may be longer than six (6) months, I agree to be bound by the six (6) month period of limitations set forth herein and I waive any statute of limitations to the contrary.

Handbook Acknowledgment, R.36-3, PageID#281.

In November 2016, in anticipation of declining sales, Fresh began a transition to a different work shift structure—two ten-hour shifts, with employees working four ten-hour days per week. Order, R.57 at 2, PageID#724. In December 2016, Fresh informed its employees of the coming work shift changes, and surveyed the employees as to their shift preferences. Order, R.57 at 2, PageID#724. Thompson and several other employees indicated that they could not work a ten-hour shift. Order, R.57 at 2, PageID#724. Thompson asked to work part-time, but Fresh denied her request and she continued to work full-time. Order, R.57 at 2, PageID#724. In January 2017, Fresh again surveyed its employees regarding their preferred shift in the new work schedule, and again Thompson declined to select a preferred shift but stated that she could work part-time. Order, R.57 at 2, PageID#724.

On January 12, 2017, Fresh informed its employees that the new shift structure would begin on January 30. Order, R.57 at 3, PageID#725. The following day, Fresh informed Thompson that she would be terminated on January 27 since she could not work either of the two new shifts. Order, R.57 at 3, PageID#725. Fresh offered Thompson, and four other employees who were also being terminated, a $500 severance payment, but Thompson refused the severance and was terminated. Order, R.57 at 3, PageID#725.

On February 1, 2017, Thompson filed a charge of discrimination in which she alleged her termination was the result of age, race, and disability discrimination by Fresh.[1] Discrimination Charge, R.36-16, PageID#308-309. On March 6, 2018, the EEOC issued Thompson a notice that it had closed its file on the charge and that she had ninety days from the date she received the notice to file suit on her claims under the ADA, ADEA, or Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Dismissal & Notice of Rights, R.2, PageID#26-27. On May 31, 2018—eighty-seven days later—Thompson brought suit, alleging she was terminated in violation of the ADEA, Title VII, and the ADA, due, respectively, to her age, race, and disability (she alleged her arthritis was both an actual disability and a basis for Fresh “perceive[ing]” her as disabled). Complaint, R.1 at 3, 8, 9, 12, PageID#3, 8, 9, 12.

Fresh moved for summary judgment, arguing that Thompson’s claims were all untimely based on the six-month limitations period set out in the Handbook Acknowledgment she signed when she started working. Fresh asserted that the timeframe for filing an action was tolled during the period where, as Fresh described it, the Commission had “exclusive jurisdiction” over the claims—for the ADEA claim, sixty days after Thompson filed her charge, and for the Title VII and ADA claims, 180 days after she filed her charge. Defs.’ Summ. J. Mem., R.34-1 at 9-11, PageID#161-163.

Thompson responded that the Acknowledgment was not a contract, that it was an unconscionable agreement, and that she nevertheless met its six-month limitations period. Pl.’s Summ. J. Resp., R.46 at 12-15, PageID#540-543. She later supplemented her response, pointing to this Court’s then-newly-issued decision in Logan v. MGM Grand Detroit Casino, 939 F.3d 824 (6th Cir. 2019), which held that Title VII’s statutory limitations period could not be altered by contract, and arguing that her claims were therefore timely. Pl.’s Supp. Auth., R.55, PageID#696-698. Fresh then conceded that Logan controlled the question as to Thompson’s Title VII claim, but argued it did not limit the Acknowledgment’s effect on her ADA or ADEA claims. Defs.’ Resp. to Supp. Auth., R.56 at 1-2, PageID#720-721.

In relevant part, Fresh also argued that Thompson could not show it had regarded her as disabled under the ADA, based on this Court’s decision in Ferrari v. Ford Motor Co., 826 F.3d 885 (6th Cir. 2016). Defs.’ Summ. J. Mem., R.34-1 at 17, PageID#169 (arguing that, for purposes of regarded-as coverage, the employer must “mistakenly believe” either that the employee has a physical impairment substantially limiting one or more major life activities or that the employee’s actual, nonlimiting impairment does so) (citing Ferrari, 826 F.3d at 893). In her response, Thompson disagreed, pointing out, “[t]he current version of the ADA[] specifically states that an individual meets the requirement of ‘“being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.’” Pl.’s Summ. J. Resp., R.46 at 22, PageID#550 (citing 42 U.S.C. 12102(3)(A) (attached at Addendum A8)).

B. District Court Decision

The district court granted Fresh’s motion for summary judgment on all of Thompson’s claims. Order, R.57 at 16, PageID#738. The court first stated that Thompson’s ADA and ADEA claims were time-barred by operation of the Handbook Acknowledgment she signed upon her hiring, which required her to bring any claims or lawsuits against the employer within six months of the employment action at issue. Order, R.57 at 3, PageID#725. The court added that such agreements are reasonable and enforceable. Order, R.57 at 4, PageID#726 (citing Thurman v. DaimlerChrysler, Inc., 397 F.3d 352, 357 (6th Cir. 2004); Myers v. W.-S. Life Ins. Co., 849 F.2d 259, 262 (6th Cir. 1988); Thomas v. Allstate Ins. Co., 974 F.2d 706, 709-10 (6th Cir. 1992)).

In rejecting Thompson’s argument that she nevertheless satisfied the agreement’s timeframe, the court reasoned that filing a charge with the EEOC would qualify as “‘commencement of an action’” under the agreement, and as a result “the contractual limitation period would have been equitably tolled while the EEOC maintained exclusive jurisdiction.” Order, R.57 at 5, PageID#727 (citing Logan v. MGM Grand Detroit Casino, 299 F. Supp. 3d 874, 884, 885 (E.D. Mich. 2018)).^{^[2]} The court then added—without citation to supporting authority—that this tolled period lasts “so long as the agency has exclusive jurisdiction—meaning the plaintiff is not yet able to file suit.” Order, R.57 at 5, PageID#727. The court next observed that “[a] plaintiff can request a right-to-sue letter on ADA claims 180 days after filing, and may file suit under the ADEA 60 days after initiating a charge.” Order, R.57 at 5, PageID#727 (citing 42 U.S.C. § 2000e-5(f)(1) (attached at Addendum A6-A7); 29 U.S.C. § 626(d) (attached at Addendum A3)). The court held that “[a]t the point where Thompson was able to bring this suit, the clock resumed ticking.” Order, R.57 at 5, PageID#727.

The court then proceeded to calculate when, in its view, Thompson’s ADA and ADEA lawsuits should have been filed. Order, R.57 at 5, PageID#727. The court concluded that the six-month contractual limitations period for Thompson’s ADEA claim was tolled for sixty days (February 1 through April 2, 2017) and expired on October 2, 2017. Order, R.57 at 5, PageID#727. As for the ADA claim, the court calculated that the limitations period began to run on July 31, 2018 (180 days after she filed her charge) and expired on January 31, 2018. Order, R.57 at 5, PageID#727. The court then held that because Thompson did not file her suit until May 31, 2018, she was “too late.” Order, R.57 at 5, PageID#727. The court also rejected Thompson’s claim that the hiring agreement was unconscionable. Order, R.57 at 5, PageID#727.

As for Thompson’s Title VII, claim, however, the court determined that the Acknowledgment’s limitations provision did not apply. Order, R.57 at 5, PageID#727. Relying on this Court’s decision in Logan, 939 F.3d at 829, the court stated that “where statutes that create rights and remedies contain their own limitation periods, the limitation period should be treated as a substantive right.” Order, R.57 at 5-6, PageID#727-728. The court recognized, again citing the appellate decision in Logan, that “Title VII’s 300-day limitation period is therefore a ‘substantive right.’” Order, R.57 at 6, PageID#728 (citing 939 F.3d at 833). The court further recognized that “[e]mployees generally cannot waive such rights in advance—meaning attempts to shorten the statute of limitations period are unenforceable with respect to Title VII claims.” Order, R.57 at 6, PageID#728 (citing Logan, 939 F.3d at 829). Noting that the parties agreed on this point, the court held that “the contractual limitation does not apply to Thompson’s race discrimination claims. They are timely.” Order, R.57 at 6, PageID#728.

The court then addressed the merits of each of Thompson’s claims. In particular, as for her disability discrimination claim, the court noted that the parties disputed whether Thompson was disabled. Order, R.57 at 10, PageID#732. Tracking the regarded-as coverage standard presented by Fresh, and ignoring the contrary standard Thompson identified, the court stated that “[i]ndividuals may be considered disabled if their employer mistakenly believes they have a physical impairment that substantially limits a major life activity, such as working or lifting.” Order, R.57 at 10, PageID#732 (citing 29 C.F.R.

§ 1630.2(i); Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 664 (6th Cir. 2008)). After reciting the ADA’s three defined bases for disability coverage, the court concluded that Thompson had not shown that she was disabled. Order, R.57 at 10-12, PageID#732-734.

Argument

I. The ADA’s limitations period for filing suit is a nonwaivable, substantive right.

In Logan, this Court held that the statutory limitations period for filing suit under Title VII is a substantive right not waivable in advance, and therefore an agreement between an employer and its employees curtailing that limitations period was unenforceable as a matter of law. 939 F.3d at 827-33. The ADA’s statutory limitations period, which is derived from Title VII’s, likewise cannot be waived in advance by a contractual clause.

The ADA directly incorporates the enforcement scheme Congress established in Title VII, providing that “[t]he powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter . . . concerning employment.” 42 U.S.C. § 12117(a) (attached at Addendum A9); see also EEOC v. Waffle House, Inc., 534 U.S. 279, 285-86 (2002) (recognizing that “Congress has directed the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII . . . when it is enforcing the ADA’s prohibitions against employment discrimination on the basis of disability”) (citing 42 U.S.C. § 12117(a)); see also Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595, 608 (6th Cir. 2018) (“The ADA incorporates the procedures and remedies available under Title VII . . . .”).

As a result, this Court’s decision in Logan forecloses any dispute over whether the ADA’s limitations period may be curtailed prospectively by contractual agreement. In Logan, a Title VII case, this Court addressed the validity of an agreement between the plaintiff and defendant providing—almost identically to the agreement at issue here—that “any claim or lawsuit arising out of my employment with, or application for employment with, [the defendant] must be filed no more than six months after the date of the employment action that is the subject of the claim or lawsuit.” Logan, 939 F.3d at 826. In finding such agreements unenforceable as a matter of law, this Court held that “the limitation period of Title VII is part of an elaborate pre-suit process that must be followed before any litigation may commence. Contractual alteration of this process abrogates substantive rights and contravenes Congress’s uniform nationwide legal regime for Title VII lawsuits.” Id.

The Court reached this conclusion based on an exhaustive examination of Title VII and other authority addressing its statutory enforcement mechanisms. Logan, 939 F.3d at 827-31. The Court specifically highlighted the importance of the “cooperative mechanisms” in the statute that enable the EEOC to help resolve disputes, rather than “encouraging litigation.” Id. at 829. The Court emphasized Congress’s choice not only to provide damages for aggrieved individuals, but also a “pre-suit process” that served the Congressional purpose of “‘cooperation and voluntary compliance . . . as the preferred means’ for eradicating workplace discrimination.” Logan, 939 F.3d at 828 (quoting in part Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)); see also id. (“Congress ‘established a procedure whereby . . . the [EEOC] would have an opportunity to investigate individual charges of discrimination, to promote voluntary compliance with the requirements of Title VII.’” (quoting in part Alexander, 415 U.S. at 44)). The Court recognized that the “cooperative mechanisms” of this detailed administrative process “have important implications for an employee who has suffered workplace discrimination. . . . Any alterations to the statutory limitation period necessarily risk . . . removing the incentive of employers to cooperate with the EEOC, and encouraging litigation that gives short shrift to pre-suit investigation and potential resolution of disputes through the EEOC and analog state and local agencies.” Id. at 829.

The Court further observed that Congress provided Title VII with its own limitation period, and “[t]he Supreme Court has told us that where statutes that create rights and remedies contain their own limitations periods, the limitation period should be treated as a substantive right.” Id. (citing Davis v. Mills, 194 U.S. 451, 454 (1904)). The Court continued, “this type of substantive right generally is not waivable in advance by employees.” Id. (citing Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 704 (1945)).

The Court recognized that the period to sue under Title VII “is a substantive, rather than procedural, rule. And because ‘it [is] clear there can be no prospective waiver of an employee’s rights under Title VII,’ it naturally follows that the limitation period of this statute is not prospectively waivable as it pertains to litigation.” Id. (quoting in part Alexander, 415 U.S. at 51). The Court observed that this result comports with circuit precedent regarding other statutory schemes that contain their own limitations periods—in particular, the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq. (“FLSA”), and the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”)—where “we have disallowed contractual limitation periods.” Id. at 830. “Thus, enforcing the express limitation period of Title VII not only protects the scheme Congress created with that statute; it is also conceptually in harmony with our interpretation of similar statutes.” Id. at 831.

The Court explained, “[o]f equal importance to the detailed pre-suit mechanisms of Title VII is the uniform national scope of the policies that Congress enacted with that legislation.” Id. at 831. It noted the Supreme Court’s determination that Title VII’s “important objective” “to achieve equality of employment opportunities and remove barriers” was “national in scope and required uniform enforcement,” such that state-law limitations periods could not govern the Commission’s enforcement efforts. Id. (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971); citing Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 358-59, 367-69 (1977)). The Court observed that Title VII “creates a uniform, nationwide system” to resolve discrimination claims; “[t]here is no reason to think that the national policies and integrated procedure that are central to EEOC actions are less important to private actions under Title VII”; and to conclude otherwise “would certainly ‘frustrate or interfere with the implementation of [the] national policies’ of Title VII, while derailing the ‘integrated, multistep enforcement procedure.’” Id. at 831-33 (quoting in part Occidental, 432 U.S. at 359, 367).

There is no meaningful distinction between Title VII and the ADA as to Logan’s holding. On summary judgment, the district court made no attempt to draw any such distinction, mechanically applying Logan only to the Title VII claim even as it cited Title VII as authority for the ADA’s limitations period. Order, R.57 at 5, PageID#727 (citing 42 U.S.C. § 2000e-5(f)(1) (Title VII) (attached at Addendum A6-A7)); see supra at 7-10. In so doing, the district court failed to account for the fact that the ADA uses the same integrated, multistep enforcement procedure Congress provided in Title VII, for the same reasons, and that all the Logan Court’s concerns about interference with statutorily defined limitation periods are equally present in the ADA context.

For both the ADA claim (and the ADEA claim, discussed infra at 19-25), the district court relied on pre-Logan authority ostensibly stating, as a general matter, that contractual agreements to alter limitations periods may be enforceable. Order, R.57 at 4, PageID#726 (citing Thurman, 397 F.3d at 357; Myers, 849 F.2d at 262; Thomas, 974 F.2d at 709-10). This authority, however, does not support the district court’s conclusion. In Logan, this Court recognized that Thurman was not a Title VII case and was only “binding precedent as to § 1981 cases.” Logan, 939 F.3d at 836; see also id. at 829-30 (explaining that, “[u]nlike Title VII, . . . § 1981 does not have a self-contained limitation provision or an extensive procedure for bringing suit,” and accordingly “a contractually shortened limitation period can control a claim under” § 1981). The same rationale applies to Myers and Thomas, neither of which involved claims under federal antidiscrimination statutes where Congress provided both “a self-contained limitation provision [and] an extensive procedure for bringing suit.” Logan, 939 F.3d at 830. See Thomas, 974 F.2d at 708 (addressing breach-of-contract claim against insurer); Myers, 849 F.2d at 259 (addressing employment discrimination claims brought under Michigan law). None of the cases cited by the district court has any bearing on the applicability of Logan to ADA (or ADEA) claims.

Moreover, we note that the contract terms at issue in this case are virtually identical to those the court found unenforceable in Logan. In Logan, the relevant contractual language stated that “any claim or lawsuit arising out of my employment with, or application for employment with, [the defendant] must be filed no more than six months after the date of the employment action that is the subject of the claim or lawsuit.” Logan, 939 F.3d at 826. Here, the Handbook Acknowledgment stated: “I agree that any claim or lawsuit arising out of my employment with Fresh Products must be filed no more than six (6) months after the date of the employment action that is [the] subject of the claim or lawsuit.” Handbook Acknowledgment, R.36-3, PageID#281.

II. The ADEA’s limitations period for filing suit is a nonwaivable, substantive right.

Logan also compels the conclusion that, just as with Title VII, the ADA, the FLSA, and the EPA, the ADEA’s statutory limitations period is a substantive right and prospective waivers of its limitations period are unenforceable. All the criteria Logan recognized as indicating that Title VII’s limitations period could not be shortened prospectively by contract are satisfied in equal measure by the ADEA. And extending Logan’s holding to the ADEA is “conceptually in harmony with [this Court’s] interpretation of similar statutes.” Logan, 939 F.3d at 831.

Like Title VII, the ADEA’s enforcement mechanisms begin with the filing of a charge of discrimination with the EEOC. Under both statutes, a charge must be filed within either 180 or 300 days of the alleged unlawful employment practice, with the extended limitation period applying, subject to certain conditions, in jurisdictions where there is a state or local law prohibiting age discrimination. 29 U.S.C. § 626(d)(1) (ADEA) (attached at Addendum A3); 42 U.S.C. § 2000e-5(e)(1) (Title VII) (attached at Addendum A6). Both statutes also require the EEOC to serve notice of the charge upon the employer, although their wording varies regarding the EEOC’s investigation and conciliation obligations. See 29 U.S.C. § 626(d)(2) (providing that, upon receiving a charge, “the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.”); 42 U.S.C. § 2000e-5(b) (“If the Commission determines after [] investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any [] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”) (attached at Addendum A5).^{^[3]}

Under the ADEA, the aggrieved individual must wait to file suit until sixty days have passed from the date the charge was filed. 29 U.S.C. § 626(d)(1) (attached at Addendum A3). When the sixty-day period has passed, however, the individual may file suit without waiting for the EEOC to issue a right-to-sue notice. See generally 29 U.S.C. § 626 (attached at Addendum A2-A4); see also 29 C.F.R. § 1626.18(b) (under the ADEA, an aggrieved person “may file a civil action at any time after 60 days have elapsed from the filing of the charge with the Commission . . . without waiting for a Notice of Dismissal or Termination to be issued”) (attached at Addendum A13).

If the charging party instead waits for the EEOC to conclude its administrative processing of the charge and issue a right-to-sue notice, she must file suit within ninety days of receiving such notice. 29 U.S.C. § 626(e) (attached at Addendum A3). In this respect, the ADEA differs from Title VII, where the charging party must obtain a notice of right to sue prior to filing suit, which she may do (1) when the EEOC concludes its processing of a charge, (2) as a matter of right after 180 days have elapsed post-filing, or (3) at the EEOC’s discretion prior to the end of that 180-day period. 42 U.S.C. § 2000e-5(f)(1) (attached at Addendum A6-A7); 29 C.F.R. §§ 1601.28(a), (b), (d) (attached at Addendum A10-A11). Once she obtains a right-to-sue notice, the Title VII plaintiff must bring any suit within ninety days. 42 U.S.C. § 2000e-5(f)(1) (attached at Addendum A6-A7).

Thus, while Title VII and the ADEA may differ in a few ways with respect to pre-suit procedures, they are extremely similar in every way material to the question before the Court here and in Logan: whether the ADEA’s statutory limitations periods, like Title VII’s, are substantive rights not waivable in advance. As this Court observed regarding Title VII, ADEA “enforcement relies on a combination of public and private action and mandates that the EEOC . . . must afford non-compliant employers the chance to voluntarily cure their violations before . . . litigation may be brought against them.” Logan, 939 F.3d at 827. Like Title VII, the ADEA sets out a “pre-suit process” that serves the Congressional purpose of “cooperation and voluntary compliance . . . as the preferred means of eradicating workplace discrimination.” Id. at 828. Accordingly, through the ADEA’s pre-suit process, “Congress ‘established a procedure whereby . . . the [EEOC] would have an opportunity to investigate individual charges of discrimination, to promote voluntary compliance with the requirements of [the statute].’” Id.

Of particular importance here, both statutes provide similar limitations periods with “important implications for an employee who has suffered workplace discrimination.” Logan, 939 F.3d at 829. As described above, the limitations period under the ADEA does differ somewhat from Title VII, in that the former permits the charging party to file suit once the initial sixty-day post-charge-filing period has passed and without requiring a right-to-sue notice. But this distinction is not a material difference for purposes of determining whether the ADEA’s statutory limitations period is a substantive right not waivable in advance.

Nothing in Logan’s analysis of whether a statutory limitations provision is a substantive right that may not be waived prospectively turned on the specific terms of that limitations period. See Logan, 939 F.3d at 829 (recognizing, without qualification, that “[t]he Supreme Court has told us that where statutes that create rights and remedies contain their own limitation periods, the limitation period should be treated as a substantive right. And this type of substantive right generally is not waivable in advance by employees.”) (citations omitted). Moreover, as noted above, both statutes contain provisions allowing a charging party to file suit without awaiting the EEOC’s full administrative processing of her charge; they differ only with respect to how many days the charging party must wait and whether she must first obtain a right-to-sue notice. See 29 C.F.R. §§ 1601.28(a) (attached at Addendum A10-A11), 1626.18(b) (attached at Addendum A13). The difference between sixty and 180 days, or the requirement of a right-to-sue notice under Title VII, has no bearing on the question of whether the ADEA’s limitation period is a substantive right not waivable in advance. See generally Logan, 939 F.3d at 827-33.

The ADEA does have one other arguably relevant provision with no analogue in Title VII: 29 U.S.C. § 626(f) (attached at Addendum A3-A4), which expressly governs waivers of “rights or claims under this chapter.” However, § 626(f), read together with Logan’s holding that a statutory limitation period is a substantive right, only strengthens the argument against construing the ADEA’s limitations period as prospectively waivable.

Congress added § 626(f) to the ADEA in 1990 when it passed the Older Workers Benefit Protection Act, Pub. L. No. 101-433, § 201, 104 Stat. 978 (1990) (“OWBPA”). As the Supreme Court has observed, “[t]he policy of the OWBPA . . . is designed to protect the rights and benefits of older workers. The OWBPA implements Congress’ policy via a strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word. . . . Courts cannot with ease presume ratification of that which Congress forbids.” Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426 (1998).

The ADEA’s waiver provision prohibits the waiver of “rights or claims that may arise after the date the waiver is executed.” 29 U.S.C. § 626(f)(1)(C) (attached at Addendum A3). Logically, any agreement to shorten the limitations period for potential ADEA claims is necessarily prospective in scope. Indeed, this Court had recognized, even in cases applying pre-OWBPA law, that prospective waivers generally are no more valid under the ADEA than they are under Title VII. See Adams v. Phillip Morris, Inc., 67 F.3d 580, 584 (6th Cir. 1995) (“It is the general rule in this circuit that an employee may not prospectively waive his or her rights under either Title VII or the ADEA.”) (citing Alexander, 415 U.S. at 51-52). If anything, § 626(f) and Logan, read together, only reaffirm the correctness of this Court’s pre-OWBPA approach to prospective waivers under the ADEA. They provide no basis to diverge from it now.

III. . The district court identified an incorrect standard for being “regarded-as” disabled under the ADA.

In the district court’s discussion of the merits of Thompson’s ADA claim, it stated an incorrect standard for establishing ADA coverage. See Order, R.57 at 10, PageID#732. In Babb v. Marysville Anesthesiologists, P.C., 942 F.3d 308, 318-19 (6th Cir. 2019), this Court discussed at length Congress’ 2008 amendment of the ADA, and in particular its revision of the standard for establishing ADA coverage under the “regarded as” prong. Babb recognized that under the amended ADA, an individual may establish that she is disabled by showing that she “has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 942 F.3d at 319; see also 42 U.S.C. § 12102(3)(A) (same) (attached at Addendum A8).

This Court decided Babb in a published opinion on November 6, 2019. In its summary judgment decision issued on December 12, 2019, however, the district court here described an outdated, pre-amendments version of the standard for regarded-as coverage. See Order, R.57 at 10, PageID#732 (describing regarded-as standard as requiring individuals to show that “their employer mistakenly believes they have a physical impairment that substantially limits a major life activity” (citations omitted) (emphasis added)). The district court’s version turns the amended ADA on its head by improperly refocusing the coverage inquiry on whether the employer believed the employee’s impairment was substantially limiting. We note that this was the same standard for regarded-as coverage Fresh advanced on summary judgment, and that Babb recognized was displaced by Congress’s 2008 amendments to the ADA. See Defs.’ Summ. J. Mem., R.34-1 at 17, PageID#169 (citing Ferrari, 826 F.3d at 893, for its regarded-as coverage standard); Babb, 942 F.3d at 319 (identifying Ferrari as one of this Court’s recent decisions that in “error” relied on the outdated, pre-amendment regarded-as standard).

Conclusion

For the foregoing reasons, the EEOC respectfully requests that this Court vacate the district court’s grant of summary judgment to the defendants and remand the case for further proceedings.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

Attorneys for amicus curiae

Equal Employment

Opportunity Commission

[1] Thompson initially submitted her charge to the Ohio Civil Rights Commission (“OCHR”), using OCHR’s charge form. See Discrimination Charge, R.36-16, PageID#308-309. When Thompson filed her charge with the OCHR it was also simultaneously “dual-filed” with the EEOC, pursuant to the EEOC’s worksharing agreement with the OCHR. See generally Ross v. ITT Cleveland Motion Control, No. 1-09-cv-2220, 2010 WL 779999, at *3 (N.D. Ohio Mar. 2, 2010) (discussing dual-filing of charges between OCHR and EEOC).

[2] The district court did not acknowledge in this part of its discussion that this Court reversed the district court decision in Logan. Order, R.57 at 5, PageID#727; see Logan, 939 F.3d at 839.

[3] The ADEA, unlike Title VII, does not expressly tie the EEOC’s conciliation obligation to a finding of reasonable cause. But the ADEA’s implementing regulations provide that the EEOC “may commence conciliation” “[w]henever [it] has a reasonable basis to conclude that a violation of the Act has occurred or will occur.” 29 C.F.R. § 1626.15(b) (attached at Addendum A12).