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Justices Highlight Importance Of Title VII Procedural Details

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Justices Highlight Importance Of Title VII Procedural Details

On June 3, 2019, the U.S. Supreme Court resolved the debate in employment discrimination law which had split the circuits. In a unanimous decision, the court held in Fort Bend County v. Davis that the exhaustion requirement that a plaintiff must first bring a Title VII discrimination charge to the U.S. Equal Employment Opportunity Commission or the equivalent state fair employment practices agency is not a jurisdictional requirement, but rather a claims-processing rule that is mandatory but can be forfeited if the defense is not raised in a timely manner.

This decision does not eliminate a plaintiff’s obligation to file an administrative charge before going to court in accordance with the statutory deadlines. That prerequisite remains firmly in place. However, the decision places the burden on employers to keep a watchful eye and promptly raise defenses that may rid them of the claim on procedural grounds.

Background

Lois Davis filed a formal charge with the EEOC against her employer, Fort Bend County, alleging sexual harassment and retaliation for her report of the harassment. While the charge was pending, Fort Bend refused to let Davis take time off to attend a church service. Davis attended the service anyway. Shortly after, Fort Bend fired her for failing to report to work.

Davis then attempted to supplement her EEOC charge with an additional religious discrimination claim by writing “religion” in the “Employment Harms and Actions” section of her EEOC intake questionnaire, and she checked the boxes for “discharge” and “reasonable accommodation” on the same form. However, Davis did not check the box for “religion” on her EEOC charge to reflect her newly asserted claim or take any further action to assert this allegation.

When Davis received her right-to-sue letter, she commenced suit in federal district court, alleging discrimination on account of religion and retaliation for reporting sexual harassment. The U.S. District Court for the Southern District of Texas granted summary judgment, which Davis appealed. The U.S. Court of Appeals for the Fifth Circuit affirmed summary judgment on the retaliation claim but found a genuine issue of material fact existed on the religious discrimination claim. Fort Bend’s petition for certiorari was denied by the Supreme Court.

On remand of the religious discrimination claim, Fort Bend asserted for the first time in this litigation that the court lacked jurisdiction to adjudicate the claim on the grounds that Davis failed to exhaust her administrative remedies with respect to that claim because she failed to specify such a claim of religious discrimination in her EEOC charge. The district court granted this motion, finding that Davis failed to exhaust her administrative remedies for her religious discrimination claim and that the charge-filing requirement was jurisdictional and could not be forfeited.

On appeal to the Fifth Circuit again, the appellate court held the exhaustion requirement was not jurisdictional. Instead, the requirement was a “a prudential prerequisite to suit” that Fort Bend waived because it had waited too long — through “an entire round of appeals all the way to the Supreme Court” — to raise it. Fort Bend filed another petition for certiorari.

Prior to this litigation, the First, Second, Third, Sixth, Seventh, Tenth and D.C. Circuits had held that exhaustion of administrative remedies was a claims-processing rule. However, the Fourth, Ninth and Eleventh Circuits held the exhaustion requirement was jurisdictional. In April, the Supreme Court granted certiorari on Fort Bend’s petition to resolve this split.

Arguments

Davis argued the exhaustion requirement was nothing more than a mandatory claims-processing rule because jurisdictional requirements demand a “clear statement” by the legislature. As a claims-processing rule, the court would be mandated to enforce the requirement only if a party properly raised the issue. Thus, the defense of "failure-to-exhaust" may be forfeited if the objecting party waits too long to raise it.

Fort Bend argued the exhaustion requirement was jurisdictional because the legislature’s intention to limit jurisdiction should be upheld whenever “fairly discernible” in a statute. If the requirement was jurisdictional, federal courts would lack authority to hear cases, like Davis’, which have not first been properly presented to the EEOC or an equivalent fair employment practices agency. Under this theory, the defense of failure-to-exhaust could be brought at any point in litigation, consequently giving employers the ability to raise this defense regardless of how long the case had been pending. The court disagreed with Fort Bend.

Opinion

Justice Ruth Bader Ginsburg’s opinion begins by announcing that in recent years the court has sought to “`ward off profligate use of the term [jurisdiction].’” Ginsburg states that the term “jurisdictional” is primarily used to delineate "the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction).” Jurisdictional requirements are created by Congress incorporating them in a jurisdictional provision or “when ‘a long line of [Supreme] Cour[t] decisions left undisturbed by Congress’ attached a jurisdictional label to the prescription.” (citations omitted).

The opinion continues by comparing jurisdictional requirements to claim-processing requirements. Claim-processing prerequisites necessitate certain steps prior to litigation and may be enforced if they are timely raised. In contrast, jurisdictional challenges may be raised any time during the litigation or by a court sua sponte.

The court held the exhaustion requirement was properly categorized as a claims-processing requirement, relying on other statutory requirements. Fort Bend asserted arguments based on textual and structural statutory schemes as to why the requirement was jurisdictional. The court vehemently disagreed and stated that one of the primary reasons the exhaustion requirement is not jurisdictional is its placement within the statute. The legislature placed Title VII’s exhaustion requirement in an entirely separate provision (Sections 706(e)(1) and (f)(1)) from where the jurisdiction provision is located (Section 706(f)(3)).

Furthermore, Title VII differs from other statutory schemes because the EEOC lacks the authority to adjudicate. When a claim is brought to the EEOC, the agency determines whether to pursue legal action or dismiss it, and to attempt to conciliate the charge. Regardless of the agency’s determination, the decision has no preclusive effect on district courts. The district courts’ review is de novo. This differs from when the legislature bestows an agency with the ability to adjudicate a decision in an adversarial proceeding, such as the National Labor Relations Board. In these instances, an appellate court is reviews the agency’s decision.

The court then compared the requirement to the ability to raise objections in the process of agency rulemaking and procedures governing copyright registration. If an objection is not timely brought, it is forfeited.

Justice Ginsburg succinctly stated the difference between jurisdictional and charge-processing requirements of Title VII: “... Title VII’s charge-filing requirements is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”

Fort Bend further argued that holding the exhaustion requirement to be jurisdictional would incentivize charging parties to skirt the statutory requirement of first bringing the claim to the proper administrative agency. Justice Ginsburg made short shrift of this concern. She recognized complainants have every incentive to exhaust their administrative remedies because a properly raised objection could rid a defendant of the lawsuit. “A Title VII complainant would be foolhardy consciously to take the risk that the employer would forego a potentially dispositive defense.”

This result is not surprising because of prior Supreme Court decisions holding that other procedural requirements were not jurisdictional. For example, in Arbaugh v. Y & H Corp., the Supreme Court ruled that Title VII’s minimum numerical threshold requirement is also not jurisdictional and could not be raised defensively late in the lawsuit. Similarly, the time limit for filing a charge with the EEOC was held by the Supreme Court in Zipes v. Trans World Airlines Inc., to be nonjurisdictional.

The Supreme Court set a high burden for a finding that a requirement is jurisdictional: “`[i]f the Legislature clearly states that a [prescription] count[s] as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue[;] [b]ut when Congress does not rank a [prescription] as jurisdictional, courts should treat the restriction as nonjurisdictional in character.’”

What This Means for Employers: Use the Defense or Litigate the Case

This opinion sheds new light on the importance of an increased focus on procedural details. While this pro-plaintiff decision will hardly cause a tidal wave of change in employment litigation, it is now abundantly clear that close and early scrutinization of complaints to determine whether the requirements of charge-filing and the processing of administrative charges have been met is essential.

It also places the burden on defense counsel to ensure that specific claims made to the district court were included in the charge or could be reasonably expected to grow out of the charge. If the complaint includes additional claims that were not presented to the EEOC for investigation, an employer should promptly assert the failure-to-exhaust objection or it will be waived.

What This Means for Employees: Title VII Procedural Defenses Are Still Alive and Well

Plaintiffs are not off the procedural hook. Claim-processing rules remain mandatory in that a court must enforce the rule if properly raised. Charging parties are still required to submit information to the EEOC in support of their charges, to wait a specified period of time to commence a civil action, and to make certain that any lawsuit is filed in federal court within the specified period of time.

What This Means on a Greater Scale: If the Legislature Wants to Make a Statutory Requirement Jurisdictional, Then it Must Do So Explicitly

In Fort Bend County v. Davis, the court adopted a bright line test to establish a jurisdictional requirement, even for one outside labor and employment law. The legislature must state a requirement is jurisdictional for it to be treated as such. Justice Ginsburg references Auburn: “[w]hile not demanding that Congress ‘incant magic words’ to render a prescription jurisdictional [citation omitted], the Court has clarified that it would ‘leave the ball in Congress’ court.’” Therefore, if a requirement does not meet this standard it will be characterized as nonjurisdictional in character.

By classifying a requirement as jurisdictional, the prerequisite is not waivable, and therefore can be asserted at any time or brought up sua sponte by the court, even years after a case is filed. The recognition that the exhaustion requirement is a charge-processing rule provides certainty as to when a case, even with procedural deficiencies, can proceed through the final resolution.

This article first appeared on Law360