Before initiating a lawsuit under Title VII*, a complainant must first file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged act of discrimination. Typically, a complainant also submits an intake questionnaire explaining in more detail the allegations of discrimination. This process is known as “administrative exhaustion” of one’s claims of discrimination. A recent U.S. Supreme Court Decision makes it extremely important for North Carolina employers to closely review claims of discrimination contained in an individual’s intake questionnaire as compared to those included in the formal charge and resulting litigation.
U.S. Supreme Court Decision: What has it changed?
In a case arising from the U.S. Fifth Circuit Court of Appeals, Fort Bend County, Texas v. Davis, the U.S. Supreme Court recently addressed whether a plaintiff can litigate claims against her employer that she raised in her intake questionnaire, but failed to include in her formal charge of discrimination. The plaintiff, Lois Davis, worked for Fort Bend County. She complained she was sexually harassed, and, following an investigation, the alleged harasser resigned. Davis then claimed her supervisor began retaliating against her for reporting the sexual harassment by, for example, reducing her work assignments. Subsequently, Davis was terminated after fulfilling a church related obligation on a Sunday, rather than coming to work as instructed by her supervisor. On her intake questionnaire, Davis included religious discrimination and discharge from employment in the “employment harms or actions” section. However, Davis’ formal charge of discrimination only included a claim for retaliation based upon reporting the sexual harassment.
Davis filed suit against Fort Bend County in January 2012 alleging religious discrimination and retaliation for reporting the sexual harassment. After the litigation had been underway for several years, Fort Bend County asserted for the first time that the Court lacked subject matter jurisdiction to address Davis’ religion-based discrimination claim because she had not included that claim in her formal charge of discrimination. The Supreme Court disagreed with Fort Bend County and held that the charge filing administrative exhaustion requirement is not jurisdictional. Rather, it is a procedural claims processing rule that is subject to waiver if not timely raised by the employer during litigation.
Significantly, prior to the Supreme Court’s decision in Fort Bend County, the County’s argument would have succeeded for North Carolina employers based upon long-standing precedent of the U.S. Fourth Circuit Court of Appeals. See, e.g., Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009)(failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim and requires dismissal. Thus, a claim in formal litigation will generally be barred if the EEOC charge alleges discrimination on one basis, such as race, and the formal litigation claim alleges discrimination on a separate basis, such as sex). Note that Jones v. Calvert Grp. has been abrogated by the Supreme Court’s ruling Fort Bend Cty., Texas v. Davis, and thus, is no longer good law.
What does it mean for you?
North Carolina employers no longer will be able to narrow the scope of Title VII lawsuits based upon lack of subject matter jurisdiction when the plaintiff has failed to properly administratively exhaust all claims. However, the Court did characterized the nature of charge-filing rules as mandatory “in the sense that a court must enforce the rule if a party ‘properly raises’ it.” Thus, it is extremely important that employers closely review the claims of discrimination contained in an individual’s intake questionnaire as compared to those included in the formal charge and resulting litigation. If claims of discrimination appear in a lawsuit that were not included in the formal charge of discrimination, employers must raise a timely and proper affirmative defense of the plaintiff’s failure to follow mandatory administrative exhaustion rules applicable to Title VII actions. Waiting to do so will likely result in waiver of this argument. As the Supreme Court’s ruling in this case makes clear – use it or lose it!
*Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice” to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. The Act also prohibits retaliation against individuals who have asserted rights under Title VII.