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  • Employees Are Not Barred from Bringing Discrimination Suits Against Employers for Failing to Properly File A Charge with the EEOC

    For years, courts have been split on whether they could hear an employee’s discrimination claim if the employee failed to properly file a charge with the U.S. Equal Employment Opportunity Commission (the “EEOC”). The Supreme Court of the United States recently settled this debate.

    In Fort Bend County v. Davis, the Supreme Court held that Title VII’s charge-filing precondition is not jurisdictional. “Federal courts exercise jurisdiction over Title VII actions pursuant to 28 U.S.C. 1331’s grant of general federal-question jurisdiction, and Title VII’s own jurisdictional provision, 42 U.S.C. 2000e-5(f)(3).” Therefore, federal courts may hear discrimination suits despite a worker’s failure to properly file complaints with the EEOC or state agencies.

    Before filing a Title VII action in court, an employee must first file a charge with the EEOC. Upon receiving a charge, the EEOC notifies the employer and investigates the allegations. The EEOC may “endeavor to eliminate [the] alleged unlawful employment practice by informal methods” if it finds “reasonable cause” to believe the charge is true. When informal methods do not resolve the charge, the EEOC may bring an action against an employer.

    Regardless of whether the EEOC commences a lawsuit or employs informal methods, an employee is entitled to a “right-to-sue” notice 180 days after the charge is filed. The employee may then commence a civil action against his or her employer within 90 days.

    Before this month, federal circuit courts were split 8-3 about whether these charge filing preconditions were “jurisdictional prescriptions” or “nonjurisdictional claim-processing rules.” If considered to be jurisdictional, employers can challenge the court’s ability to hear the case at any point during litigation. But, if considered nonjurisdictional claim-processing rules, employers must make a timely objection or otherwise waive the defense.

    In Davis, an IT employee of Fort Bend County, was fired for not reporting to work one morning. Davis claims she was forced to miss her shift after her supervisor refused to approve her request to take off on a Sunday to attend a religious service. She alleged the supervisor was close friends with her former boss, who was fired after Davis accused him of sexual harassment. Davis claims her subsequent termination was retaliatory and in violation of Title VII’s prohibition of religious discrimination.

    Prior to being terminated, Davis submitted an “intake questionnaire” and an EEOC charge seeking redress for alleged sexual harassment and retaliation, which was pending at the time of her termination. To supplement the allegations in her charge, Davis wrote “religion” on the “Employment Harms or Actions” part of her intake questionnaire and also checked boxes for “discharge” and “reasonable accommodation.” However, she made no alterations to the formal charge document.

    In 2012, Davis filed suit in federal court. The district court granted summary judgment in favor of Fort Bend County on all claims. The U.S. Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) affirmed the district court as to the retaliation claim, but reversed and remanded the religious discrimination claim, finding that genuine disputes of material fact warranted a trial. Years into the litigation, Fort Bend County moved to dismiss Davis’ religion-based discrimination claim. Fort Bend County argued that the district court lacked subject-matter jurisdiction, as Davis failed to include such a claim in her EEOC charge. The district court agreed and granted Fort Bend County’s motion to dismiss.

    On appeal, the Fifth Circuit reversed, holding that Title VII does not explicitly require exhaustion of the administrative process in order for courts to have jurisdiction over bias claims. Instead, Title VII’s “requirement is a prudential prerequisite to suit, forfeited in Davis’ case because Fort Bend did not raise it until after ‘an entire round of appeals all the way to the Supreme Court.’”

    After granting Fort Bend County’s petition for certiorari, the U.S. Supreme Court affirmed the Fifth Circuit’s ruling, rejecting Fort Bend County’s claim that a ruling for Davis would encourage workers to skirt Title VII’s administrative requirements.

    Following Fort Bend County v. Davis, it is settled that Title VII’s charge-filing requirement is not a non-waivable jurisdictional rule, but is instead a mandatory claim-processing rule that can be waived if the party invoking it waits too long. As the Supreme Court noted: “Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription…” Employers should remain cognizant that the charge-filing requirement speaks only to a claimant’s procedural obligations and is subject to forfeiture. 

    If you have any questions or concerns regarding employment related issues, please contact Hayley B. Dryer at HDryer@cullenanddykman.com or at (516) 357 – 3745.

    Thank you to Joelle Pisani, a summer associate at Cullen and Dykman LLP, for her assistance with this post.