Monday, June 3, 2019

SCOTUS: Title VII charge process is procedural, not jurisdictional

Before would-be plaintiffs file employment discrimination lawsuits under Title VII (race, color, sex, religion, and national origin), they must first exhaust their administrative remedies. Put another way, they must go to the U.S. Equal Employment Opportunity Commission (EEOC) and file a charge first.

Today, the Supreme Court issued a unanimous decision, with an opinion from Justice Ginsburg ("Notorious RBG" as the cool kids call her) in Fort Bend County v. Davis:
Is Title VII’s charge-filing precondition to suit a “jurisdictional” requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title VII’s charge-filing instruction is not jurisdictional . . . Prerequisites to suit like Title VII’s charge-filing instruction are . . . properly ranked among the array of claim-processing rules that must be timely raised to come into play.
Great. What does that mean?

In short, it means that an employer-defendant in a Title VII case can waive the requirement by not raising it fast enough. In this particular case, the plaintiff had not included "religion" on its EEOC charge, but did include other types of claims (retaliation and sexual harassment). The plaintiff filed a lawsuit based on religious discrimination, retaliation, and sexual harassment. After litigating the case for 3-4 years, all of the claims were dismissed . . . except the religion claim, which was remanded from the appellate court back down to the trial court.

The defendant asked the trail court to dismiss the religion claim because it had never gone through the EEOC charge process. Too late!* The plaintiff can proceed with the religious discrimination claim despite not including it in the EEOC charge. That's the bottom line of today's ruling. 

This sets a particularly tricky trap for employers here in the Third Circuit. On the one hand, Title VII plaintiffs are not required to plead administrative exhaustion with particularity. On the other hand, as of today, defendants can be held to have waived a failure to exhaust administrative remedies defense by not raising it soon enough. Do you see why that creates a problem for employers?

This also creates some side issues, that I have not yet looked into (but probably will have to now!):

  • How specific does a defendant need to be to preserve this defense? Does a generic affirmative defense in an Answer ("Plaintiff failed to exhaust administrative remedies") sufficient?
  • How late is too late to raise the issue?

 * Actually, the trial court did dismiss the claim, but the 5th Circuit reversed and today SCOTUS sided with the 5th Circuit.

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