Skip the EEOC and Go Straight to Court?

It’s Possible but Following Procedure is Still the Best Route

June 18, 2019

Lía Fiol-Matta, Esq., Ty Hyderally, Esq., Sherif Farrag

Employment discrimination actions arising under federal law (Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et seq (1964) (“Title VII”), which prohibits discrimination in the workplace based on race, color, religion, sex or national origin, now have less restrictions for going to court.  On June 3, 2019, the U.S. Supreme Court, in an opinion authored by Ruth Bader Ginsberg, ruled that Title VII’s requirement that potential plaintiffs must first file a charge of discrimination (“COD”) with the Equal Employment Opportunity Commission (“EEOC”) or a state fair employment practices agency (“FEPA”), is not a jurisdictional requirement but rather a mandatory claim-processing rule, subject to waiver if not timely raised.  Jurisdictional requirements (for instance, that the court must have authority to try cases and issue rulings within a certain geographic area and over certain types of legal cases) can be brought up as a defense and result in a dismissal at any moment during a case.  The effect of the Supreme Court’s recent ruling is that, a judge may decide that a defendant waived the defense that a plaintiff did not file a COD before suing in federal court by failing to assert it at the outset of a case.

In Fort Bend County, Texas v. Davis, 139 S. Ct. 1843 (2019), Lois Davis worked in information technology for Fort bend County, Texas. In 2010, she complained to the human resources department of sexual harassment by her supervisor, who subsequently resigned but then, according to Davis, retaliated against her for reporting the harassment. Davis filed a COD at the EEOC in 2011 and while the charge was pending, Fort Bend terminated Davis’ employment for not working on a Sunday due to a church commitment, even though Davis requested to switch shifts because of her church obligation. After she was fired, Davis added the word “religion” to her EEOC questionnaire, as well as checked the boxes for “discharge” and “reasonable accommodation” but did not amend the COD to include her religious discrimination claim.

Davis received a notice of right to sue letter from the EEOC, allowing her to proceed to court, and filed a lawsuit against Fort Bend County alleging harassment, retaliation and religious discrimination. After several years of litigation, during which Davis’ case had been on appeal and remanded to the trial court regarding her religious discrimination claim, Defendants moved to dismiss that claim for the first time. Fort Bend County argued that the court lacked jurisdiction over the matter because Davis failed to exhaust her administrative remedies by not filing a COD at the EEOC on the religious discrimination claim. The trial court agreed and dismissed Davis’ religious discrimination claim but the Fifth Circuit Court of Appels reversed, finding that the requirement to file a COD is a procedural, not a jurisdictional, requirement. The Fifth Circuit concluded that Defendants waived the defense because they failed to raise it in a timely manner.

Fort Bend County petitioned the Supreme Court to review the decision and the Court unanimously affirmed it, concluding that Title VII’s charge-filing requirement is not a jurisdictional rule but instead is a mandatory-claim processing rule that can be waived if the party invoking the defense waits too long to raise it. The Supreme Court ruled that objections regarding Title VII’s charge-filing requirement must be brought early in the case or an employer could forego the potential defense.

The Court’s decision does not remove the procedural requirement of filing a COD before suing an employer for workplace discrimination under Title VII, which applies to public and private employers with fifteen (15) or more employees. A COD must be filed at the EEOC or a FEPA within 180 days of the discriminatory employment action. The EEOC will investigate the charge and first attempt to resolve it with the employer and the charging party. Unless the EEOC settles the case or decides to litigate it, the EEOC will issue a notice of right to sue letter allowing the employee to file a complaint in court.

If you have questions regarding the Supreme Court’s ruling or your rights related to workplace discrimination under Title VII, we encourage you to consult an employment attorney.

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.