Title VII of the Civil Rights Act of 1964 requires plaintiffs with claims of employment discrimination to exhaust administrative remedies with the EEOC before filing a lawsuit in federal court. This means a plaintiff has to at least file a charge of discrimination with the EEOC and give the EEOC some time to investigate before filing a suit in court. The question now at issue is if this filing is even necessary.
There is a Split in Opinion Among the Appellate Courts
There is a dispute among the Federal Courts of Appeal whether filing the EEOC Charge is a jurisdictional requirement (i.e., mandatory) or a waivable claims processing rule. If it is jurisdictional, failure to file an EEOC Charge would kill the plaintiff’s case. Fort Bend County v. Lois M. Davis, a case out of the Fifth Circuit, is on its way to the Supreme Court of the United States to decide this issue once and for all.
Fort Bend County hired Ms. Davis as an information technology supervisor in 2007. In 2010, she complained to Human Resources the director of her department was sexually harassing her. The County conducted an investigation and ultimately the director resigned. In March 2011, Davis filed a charge with the EEOC and Texas Workforce Commission alleging she was retaliated against after complaining to human resources and subjected to sexual harassment. She did not assert a claim of religious discrimination in her charge.
During the subsequent fourth of July weekend, the County was moving office space and Davis was instructed to work on Sunday, July 3rd to set up the computer system. She refused, citing a “previous religious commitment.” The County terminated her employment for refusing to attend. Following her termination, Ms. Davis modified her in-take questionnaire with the Texas Workforce Commission by writing “religion” next to a checklist labeled “Employment Harms or Actions.”
In November 2011, the Texas Workforce Commission gave her a right to sue letter stating it could not “be established that the employer has discriminated against you based on Sex, Retaliation, or any other reason prohibited by the laws we enforce.” In January 2012, Ms. Davis filed a Complaint against the County in federal court asserting claims for retaliation and religious discrimination by requiring her to work on Sunday, July 3rd.
The County moved for summary judgment and the Court dismissed the case. The Fifth Circuit reversed in part, finding there was a question as to whether the County had a sufficiently compelling reason to require Davis to work on Sunday. On remand, the County moved to dismiss Davis’s religious discrimination claim arguing the Court lacked subject matter jurisdiction since she failed to raise religion in her EEOC Charge. The District Court granted the motion and the Fifth Circuit reversed. It held the Title VII administrative exhaustion requirement is not a jurisdictional bar to suit.
In issuing this holding, the Fifth Circuit joined the First, Second, Third, Sixth, Seventh, Tenth, and D.C. Circuits’ position. The Fourth, Ninth, and Eleventh Circuits, however, take the position courts can’t hear Title VII claims unless the plaintiff first brought them to the EEOC.
Why this Case Matters to Employers
For employers, this case is significant. If the exhaustion requirement is only a waivable claim processing rule, this means an employee can assert an additional claim in his or her federal lawsuit that was never litigated at the agency level. This is exactly what Ms. Davis did. To allow this denies employers notice of all of the claims against them until a federal lawsuit is filed.
It also denies employers the opportunity for early resolution of all complaints since they are not made aware of the allegations until long after the administrative process is over. We will wait to see what the Supreme Court holds.
Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
