Don’t Panic: The Supreme Court Did Not Just Open the Floodgates to Bias Claims
June 4, 2019
Those who pay attention to the Supreme Court may have seen several recent headlines about how a new decision makes it easier for employees to pursue employment discrimination claims. Headlines like “High Court Weakens Employer Defense to Job Bias Claims” (Daily Labor Report) and “Bias Accusers Can Go Straight to Court, Justices Say” (Employment Law360) grab attention, but they are a bit misleading once you dig into the details of the case.
The decision behind these headlines is Fort Bend County, Texas v. Davis, No. 18-525, issued June 3, 2019. In this case, the Court addressed whether the requirement that an employee file a timely charge with the EEOC or state fair employment practices agency before filing suit under Title VII of the Civil Rights Act of 1964 is jurisdictional or just a “claim processing rule.” This seemingly esoteric distinction matters because, if the charge-filing requirement is jurisdictional, an employer could raise a plaintiff’s failure to file a timely charge at any point during the litigation. In contrast, if the charge-filing obligation is simply a claim processing rule, an employer must timely raise the issue when it files its answer to the plaintiff’s complaint, or risk waiving the defense.
In Fort Bend County v. Davis, an employee filed a charge with the Texas Workforce Commission that was automatically submitted to the EEOC under a work-sharing agreement between the two agencies. The charge alleged sexual harassment and retaliation. Later, the plaintiff filed a federal lawsuit adding a religious discrimination claim to her complaint under Title VII. The employer waited five years before it raised the argument that the court lacked jurisdiction to adjudicate the religious discrimination claim. In response, the plaintiff argued that the exhaustion requirement is not jurisdictional but rather a “claim processing requirement,” which the employer waived when it waited five years before raising it. The Fifth Circuit held in favor of the plaintiff, ruling that Title VII’s charge-filing requirement is not jurisdictional but rather a “prudent prerequisite to suit.”
Seven of the U.S. Circuit Courts of Appeal previously agreed with the Fifth Circuit’s holding: First, Second, Third, Sixth, Seventh, Tenth, and District of Columbia. The Fourth and Eleventh Circuits took the opposite view, prompting the Supreme Court to take up the case in order to resolve the split in authority. Interestingly, even the federal government was divided on the issue, with the Department of Justice arguing that the requirement is jurisdictional whereas the EEOC has declared that it is not.
In a 9-0 opinion, authored by Justice Ginsburg, the court unanimously held that “Title VII’s charge-filing requirement is a nonjurisdcitional claim-processing rule”:
The Court has therefore stressed the distinction between jurisdictional prescriptions and nonjurisdictional claim-processing rules, which “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” A claim-processing rule may be “mandatory” in the sense that a court must enforce the rule if a party “properly raise[s]” it. But an objection based on a mandatory claim-processing rule may be forfeited “if the party asserting the rule waits too long to raise the point.”
Because the defendant employer failed to timely raise plaintiff’s noncompliance with the administrative exhaustion requirement, it forfeited its ability to rely on this defense.
Take Away: For employers in the federal circuits that had already adopted the position that the Supreme Court endorsed in Fort Bend County, this ruling simply reaffirms the current law. This includes employers in the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin. In the Fourth and Eleventh Circuits, the ruling is mainly significant only in those relatively rare cases where an employee has already filed suit and the employer, for whatever reason, does not raise the employee’s failure to file a timely charge of discrimination until later in the litigation. In other words, don’t panic – at least, not about this case.