By Lisa Soronen
A simple way to describe the ruling in Fort Bend County v. Davis is that an employer can’t wait a very long time to tell the court an employee failed to follow a statutorily mandated procedure in an employment discrimination case.
In Fort Bend County, Texas v. Davis the Supreme Court held unanimously that Title VII’s charge-filing requirement is a “mandatory procedural prescription” that a court must consider if timely raised (but may be forfeited if not timely asserted).
The State and Local Legal Center (SLLC) filed an amicus brief arguing that the charge-filing requirement is jurisdictional, meaning it can be raised at any stage of the litigation. If the charge-filing requirement was jurisdictional and an employee failed to comply with it, a court would no longer have authority to hear the case.
In her charge form to the EEOC, Lois Davis alleged that supervisors at Fort Bend County had sexually harassed her and retaliated against her. While her charge was pending, she was fired for refusing to come to work on a Sunday because of a commitment at church.
She updated her EEOC intake questionnaire to include religious discrimination but didn’t update the charge form.
The EEOC investigated and gave Davis permission to sue. She brought a religious discrimination claim and a claim for retaliation for reporting sexual harassment. Years into the litigation, Fort Bend County argued the court lacked jurisdiction to hear the religious discrimination claim because Davis never included it in the charge form.
The Supreme Court, in an opinion written by Justice Ruth Bader Ginsburg, held that Title VII’s charge-filing requirement is a mandatory but waivable claim-processing rule (which was waived in this case because Fort Bend waited so long to point out Davis didn’t comply with the charge-filing requirement).
According to the court, Congress must clearly state a prescription is jurisdictional. Title VII’s charge-filing requirements “d[o] not speak to a court’s authority,” or “refer in any way to the jurisdiction of the district courts.” Instead they “speak to . . . a party’s procedural obligations. They require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action.”
The SLLC amicus brief argued that Title VII’s charge-filing requirement should be jurisdictional, meaning if an employee doesn’t comply with it a court should not be able to decide the case, because employees should not be able proceed with litigation where they have failed to comply with the statutorily mandated charge-filing requirement.
The court rejected this argument opining: “[R]ecognizing that the charge-filing requirement is nonjurisdictional gives plaintiffs scant incentive to skirt the instruction. Defendants, after all, have good reason promptly to raise an objection that may rid them of the lawsuit filed against them. A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.”
Ginsburg is correct that following this decision employers must be more vigilant about making sure the employee met the charge-filing requirement as soon as a lawsuit is filed.
Collin O’Connor Udell and Mara E. Finkelstein of Jackson Lewis wrote the SLLC amicus brief, which was joined by the National Conference of State Legislatures, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the National Public Labor Relations Association, the International Public Management Association for Human Resources, and the National School Boards Association.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.