By: Claudia D. Orr
At first, the media’s announcement of the new U.S. Supreme Court decision, Fort Bend County, Texas v Davis, left me scratching my head, but after reading the case, it really did not say anything new, it just made the point very clear. The opinion authored by Justice Ginsburg was just released on June 3, 2019.
A little background information may be helpful. Federal courts are courts of limited jurisdiction. They can hear cases involving a federal question or they can hear cases where there is diversity (in very simple terms, all of the defendant are located out of the state where the claims are brought) and there is $75,000 or more at issue. Federal civil rights claims (i.e., those under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, etc.) present federal questions. If the court does not have jurisdiction, it cannot exercise authority over the case.
Title VII contains a procedure that applies to most of the federal civil rights statutes whereby charges must first be filed with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged unlawful practice (or within 300 days in states, such as Michigan, where there is a state agency empowered to investigate civil rights violations). If the EEOC determines there is “no reasonable cause to believe that the charge is true”, it issues to the “charging party” a notice of right to sue in court.
But what happens when the charging party files in court without first filing the administrative charge, or before the notice of right to sue is issued, or perhaps fails to allege all of the violations in the charge that are stated in the civil action? Must the federal district court dismiss those civil rights claims upon motion by the defendant/employer? If filing at the EEOC is a jurisdictional requirement, the answer is yes. Let’s look at some of the prior Supreme Court decisions on this issue.
In 1982, the Supreme Court held that the administrative process applicable to federal civil rights claims is not a jurisdictional prerequisite to suit, but rather “a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v Trans World Airlines, 455 US 385, 393 (1982).
However, just two years later, the Court felt obliged to clarify its prior statement, stating, “[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. … [I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Baldwin County Welcome Center v Brown, 466 US 147, 152 (1984). The Court further clarified that it had not declared in Zipes that the requirement does not ever have to be satisfied; but only that it is subject to waiver and tolling, etc.
In the recent case, the former employee had filed a charge at the EEOC alleging sexual harassment and retaliation. Later, she “amended” her charge (or thought she had) by writing on the intake questionnaire “religion”, “discharge” and “reasonable accommodation”. Apparently, after the initial charge was filed, she was fired for failing to report to work on a Sunday due to a church commitment when she had been told she would be fired if she did not report. A point of fact: writing comments on the intake questionnaire is not how charges are amended.
After receiving her notice of right to sue, the former employee brought a lawsuit that contained a claim of religion based discrimination. “Years into the litigation, Fort Bend asserted for the first time that the District Court lacked jurisdiction to adjudicate [the] religion-based discrimination claim because she had not stated such a claim in her EEOC Charge.” The district court granted the motion finding the requirement to be jurisdictional. The Fifth Circuit reversed holding that this was not a jurisdictional requirement, but rather the “requirement is a prudential prerequisite” to filing suit.
The Supreme Court agreed to hear the case to decide the issue once and for all. The issue was framed as follows: “whether a precondition to suit is a mandatory claim-processing rule subject to forfeiture, or a jurisdictional prescription.” The Court explained that jurisdictional requirements can’t be waived and, in fact, a court may raise the issue sua sponte (on its own) at any time. If a court does not have jurisdiction, it lacks authority to act in the case.
The Court characterized the charge filing requirement as “a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” “[A] rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.”
So, there you have it. Employers should continue to raise the defense as early on in litigation, but a Plaintiff may be able to argue that there are reasons why the failure should be excused. Dismissal on this basis is not a certainty.
This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at firstname.lastname@example.org or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html
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