Raise Your Defenses and Raise Them Early: A Good Reminder from the Supreme Court for Employment Counsel Defending Title VII Claims

On June 3, 2019, the Supreme Court of the United States released its opinion in Fort Bend County, Texas v. Davis leading to a very valuable lesson for employers – raise your defenses and raise them early.

The employee in this case filed an EEOC charge against her employer for sexual harassment and retaliation for reporting the harassment. After being fired for not reporting to work, opting to go to church instead, the employee attempted to amend her claim by handwriting in “religion” but failed to formally amend her charge document. She later commenced suit in federal court alleging discrimination based on religion, sexual harassment, and retaliation in 2012.

In 2013, the district court granted the employer’s motion for summary judgment on all claims. However, in 2014, the Court of Appeals for the Fifth Circuit affirmed all claims but reversed as to the religion-based discrimination claim.

After years of litigating the case, only the religion claim was remanded to the district court and the employer, for the first time, moved to dismiss the complaint asserting that the district court lacked jurisdiction to adjudicate because the EEOC charge did not include religion-based discrimination. The district court agreed and granted the motion, but the Fifth Circuit Court of Appeals reversed.

The issue before the Supreme Court: Is a precondition to suit a mandatory claim processing rule subject to forfeiture?
or
Is a precondition to suit a mandatory claim processing rule subject to jurisdictional prescription?

The Supreme Court unanimously argued a precondition to suit was a mandatory claim processing rule subject to forfeiture, stating that Congress did not create Title VII’s claim-processing rule as jurisdictional — noting that the EEOC is not the equivalent of a court of first instance with power to adjudicate cases that are later reviewed by courts. Instead, Title VII’s charge-filing provisions speak to a party’s procedural obligation. As such, “a claim-processing rule may be ‘mandatory’ in the sense that a court must enforce the rule if a party ‘properly raise[s]’ it.” (citing Eberhart v. United States, 546 U.S. 12, 19 (2005)). However, the objection may be forfeited if the party waits too long to raise it. Here, the Court decided that raising it at the summary judgement phase of litigation — post discovery — was too long. For employers, this case comes as a helpful reminder to raise all objections early in the case to prevent forgoing a potentially dispositive defense.  

Fort Bend County, Texas v. Davis, No. 18-525, 2019 U.S. LEXIS 3891 (June 3, 2019).

Please contact Tennille Hoover at [email protected] if you have questions regarding this article.