By Alexander D. Clark
The Supreme Court recently held, in Fort Bend County, Texas v. Davis, that the provision in Title VII of the Civil Rights Act of 1964 (Title VII) instructing plaintiffs to file a charge with the Equal Employment Opportunity Commission (EEOC or Commission) or other state fair employment agency is a non-jurisdictional claim-processing rule. This means that a defendant can waive its right to object to a plaintiff’s failure to comply with the charge-filing requirement if the issue is not raised in a timely manner.
Title VII’s Charge Procedure
All employers should be familiar with Title VII and its proscription on discrimination in employment on the basis of race, color, religion, sex, or national origin. The Act further prohibits retaliation against persons who assert their rights under the statute. As a precondition to the commencement of a lawsuit brought under Title VII, a complainant must first file a charge with the EEOC or, when a state has a fair employment agency of its own, with the appropriate state agency. In fact, the applicable statute directs that a “charge . . . shall be filed” with 180 days “after the alleged unlawful employment practice occur[s],” or, if the charge is lodged with a state agency, the complainant must file a charge with the EEOC within 300 days following the alleged unlawful practice or 30 days after receiving notice that the state or local proceedings have ended, whichever is earlier.
Upon receipt of a charge, the EEOC provides notice of the charge to the employer and investigates the allegations. If the EEOC finds “reasonable cause” to believe that the charge is true, Title VII instructs the EEOC to “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” When a charge is not resolved by informal methods, the EEOC has the first option to bring suit against the employer in court. If, however, the EEOC finds “no reasonable cause” to believe the charge is true, the EEOC must dismiss the charge and notify the complainant of his or her right to file suit in court, which must be commenced within 90 days following receipt of the notice.
The Facts of Fort Bend County, Texas v. Davis
Lois Davis worked in information technology for Fort Bend County, Texas. In 2010, she informed Fort Bend’s human resources department that she was being sexually harassed by the director of technology, Charles Cook. The County investigated Davis’ claim, after which, Cook resigned. However, Davis’ supervisor, Kenneth Ford, was apparently “well acquainted” with Cook, and, after Cook resigned, Davis alleged that he began retaliating against her for reporting Cook’s sexual harassment. Seeking to remedy her asserted harassment and retaliation, Davis submitted an “intake questionnaire” with the EEOC in February 2011, followed by a formal charge with the EEOC in March 2011.
While her charge was pending, Davis was told to report to work on an upcoming Sunday. Davis informed Ford, her supervisor, that she would be unable to come to work due to a prior commitment with her church that Sunday. Ford responded that if she did not show up for the Sunday work, she would be subject to termination. Davis went to church, not work, that Sunday, and was fired for her failure to attend.
In an attempt to supplement her pending charge, Davis handwrote “religion” on the “Employment Harms or Actions” part of her intake questionnaire, and she checked boxes for “discharge” and “reasonable accommodation” on that form. She made no change or alteration, however, to the formal charge document. A few months later, Davis received her “right-to-sue” notice, and, in January 2012, filed a lawsuit against Fort Bend in a federal district court in Texas, alleging discrimination on account of religion and retaliation for reporting sexual harassment.
The district court ruled for Fort Bend on both the discrimination and retaliation claims. On appeal, the Court of Appeals for the Fifth Circuit (which hears appeal from, among other places, federal district courts in Texas), affirmed the district court’s decision as to the retaliation claim, but reversed as to her religious-based discrimination claim. Therefore, the case was remanded to the same district court to reconsider Davis’ discrimination claim based on the Fifth Circuit’s opinion. Thereupon, Fort Bend asked the district court, for the first time in years-long litigation, to dismiss Davis’ pending claim of discrimination against it because the district court lacked jurisdiction to adjudicate Davis’ religious-based discrimination claim due to Davis’ failure to exhaust her administrative remedies as to that claim. The district court agreed, and dismissed the lawsuit on the basis that the charge-filing requirement is jurisdictional, which means the requirement cannot not be waived. The Fifth Circuit reversed the district court’s dismissal, holding that Title VII’s charge-filing requirement is a “prudential prerequisite to suit, forfeited in Davis’ case because Fort Bend” waited “years into the litigation,” and “did not raise it until ‘an entire round of appeals[.]’”
The Supreme Court’s Ruling and What it Means
The Supreme Court affirmed the Fifth Circuit’s decision, holding that “Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of the courts.” The provisions of Title VII requiring a charge to be filed with the EEOC are separate from the provision granting federal district courts jurisdiction to adjudicate such claims, and the charge-filing provisions do not refer to jurisdiction of such courts in any way. Rather, Title VII’s provisions instructing plaintiffs to file a charge speak to a party’s procedural obligations, requiring complainants to submit information to the EEOC and to wait a specified period before commencing a civil lawsuit.
If the Supreme Court had ruled that the charge-filing requirement was jurisdictional, Davis’ case would have been dismissed with no exceptions. Instead, because the requirement pertains only to a complainant’s procedural obligations, Davis’ employer waived its right to rely on Davis’ failure to file a charge for religious discrimination as a basis for dismissal by waiting too long to raise it.
While not jurisdictional in nature, the Supreme Court emphasized that the charge-filing requirement is still a mandatory, precondition to filing a Title VII lawsuit. While Davis prevailed under unique factual circumstances, the ruling provides little incentive for complainants to neglect filing a charge, as it would provide a dispositive defense for the employer if promptly raised. Few employers would neglect such an opportunity to dispose of a charge filed against them.
Employer Takeaways from the Fort Bend County Opinion
In a civil action under Title VII, the claims asserted in the federal lawsuit must be identical to those in a charge levied at the administrative level. For example, a Title VII lawsuit alleging race discrimination and gender discrimination should be preceded by a charge that alleges both forms of discrimination. Thus, an employer that finds itself defending a Title VII lawsuit should begin by making two inquiries: (1) did the plaintiff/employee file a charge with the EEOC or an equivalent state agency? (2) If the answer is yes, did the plaintiff/employee assert the same claims in the lawsuit as he or she did in the charge?
If the plaintiff/employee either failed to file a charge at all or the claims in the lawsuit expand on the claims asserted at the administrative level, the employer should move to dismiss the claims not raised at the administrative charge level for failure by the plaintiff/employee to exhaust his or her administrative remedies. Employers should consult with counsel to make this assessment, and motion, without delay. The Supreme Court stressed that an employer’s valid defense to a lawsuit based on a failure to file an adequate charge can be forfeited if the employer waits too long to raise the argument. Thus, the sooner the objection is raised the better for the employer. Ideally, this dispositive defense would be raised in an employer’s initial answer and/or motion to dismiss.
aclark@cgwg.com
Cross, Gunter, Witherspoon & Galchus, P.C.
www.cgwg.com