Wednesday, June 5, 2019

SCOTUS decides whether Title VII’s charge-filing precondition to suit is jurisdictional or non-jurisdictional

If the U.S. Supreme Court decided an employment case, I’m contractually obligated to blog about it. Yet, Ford Bend County, Texas v. Davis, which it decided earlier this week, is of little practical import.

To file a private employment discrimination lawsuit under one of the federal employment discrimination statutes, a plaintiff must first exhaust his or her remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission.

What happens, however, if the employee skips over the EEOC and proceeds straight to court? Does that court even have jurisdiction over the claim, or is the omitted EEOC filing merely an affirmative defense for an employer to raise in seeking dismissal of the lawsuit?

In Ford Bend County, Texas v. Davis, the Supreme Court answered the question.

Is Title VII’s charge-filing precondition to suit a “jurisdictional” requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title VII’s charge-filing instruction is not jurisdictional…. Prerequisites to suit like Title VII’s charge-filing instruction are … properly ranked among the array of claim-processing rules that must be timely raised to come into play. 

All of the legal press I’ve seen about this case has said something akin to this story in The National Law Journal: Justices Just Made It Harder for Employers to Dismiss Job Bias Lawsuits. That’s not, however, what this case actually did.

Technically speaking, SCOTUS did expand the rights of employees by allowing them to skip the EEOC before going to court. But, this holding does not mean that a plaintiff can skip the EEOC without consequence. It just means that it would provide to an employer a defense to assert, and not a jurisdictional bar to the filing of the lawsuit in the first place. And, as the opinion aptly points out, “A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.”

Indeed, a plaintiff’s lawyer that recommends this course of action should immediately put his or her malpractice carrier on notice. Why would a plaintiff’s lawyer file a suit that cannot possibly be won and would be subject to an easily granted motion to dismiss? It’s malpractice for a plaintiff’s lawyer to take that risk, and malpractice for a defense lawyer not to raise the defense and seek dismissal via an immediate motion.

Thus, Ford Bend County, Texas v. Davis has little practical impact other than deciding a circuit split on this issue. Indeed, in Ohio, administrative exhaustion via an agency filing isn’t required at all before filing a claim under our state employment discrimination statute. Which mean in my practice and for most of my clients, this case is of even less significance.