What the U.S. Supreme Court’s Fort Bend County Decision Really Means for Employers
By: Attorney Jerilyn Jacobs – Weld Riley, S.C.
The United States Supreme Court issued a decision this week that has created some stir, and perhaps some confusion, amongst employers and employment law attorneys. The issue that was resolved by the Supreme Court was procedural in nature, and not necessarily the game changer that some have thought to be.
The decision, Fort Bend Cty., Texas v. Davis, No. 18-525, 2019 WL 2331306 (U.S. June 3, 2019), involved a county employee, Lois Davis, who sued the county, alleging retaliation and religious discrimination in violation of Title VII.
Ms. Davis worked in information technology for Fort Bend County, Texas. During her employment, she informed the human resources department that she believed that the director of information technology was sexually harassing her. Following the investigation, during which the alleged harasser resigned, Ms. Davis claims that she was subjected to retaliation by her own direct supervisor, Kenneth Ford, for having reported the alleged sexual harassment.
When Ms. Davis first approached the EEOC, she sought redress for sexual harassment and retaliation. She submitted a written intake questionnaire. While the charge was pending, Ms. Davis was told to report to work on an upcoming Sunday. The county had a newly built justice center, and the IT Department needed to install personal computers, network components, and audiovisual equipment. The installation was scheduled for the weekend of July 4, 2011, and all IT employees were required to be present.
Ms. Davis informed Mr. Ford that she had a commitment at church that Sunday, July 3rd, and she offered to arrange for another employee to replace her at work. Ford responded that if Ms. Davis did not show up to work on Sunday, her employment could be subject to discipline, including termination of employment. Ms. Davis went to church and did not report to work that Sunday. Subsequently, she was fired.
In an apparent attempt to supplement the allegations in her EEOC charge, Ms. Davis handwrote “religion” on the “Employment Harms or Actions” part of her intake questionnaire. She checked the boxes “discharge” and “reasonable accommodation” on that form. She made no changes, however, in the formal charge document. A few months later, Ms. Davis was given a notice of right to sue.
Ms. Davis then filed a civil lawsuit in federal court. The complaint alleged three different claims: 1) discrimination on account of religion; 2) retaliation for reporting sexual harassment; and 3) intentional infliction of emotional distress.
Initially, Fort Bend prevailed entirely on a motion for summary judgment. Ms. Davis appealed the decision as to her religious discrimination claim and her retaliation claim. The Court of Appeals for the Fifth Circuit (covering Louisiana, Mississippi, and Texas) upheld the dismissal of retaliation claim, finding that the termination of Ms. Davis’ employment was not due to retaliation. However, the Fifth Circuit reversed as to the religion-based discrimination claim, holding that genuine issues of material facts existed as to whether Ms. Davis felt she was religiously compelled to attend church that day and whether it would have been an undue hardship to allow Ms. Davis to arrange a substitute for her shift. It was then that the attorneys for Fort Bend asserted as a defense that the federal court lacked jurisdiction to adjudicate Ms. Davis’ religion-based discrimination claim because she had not sufficiently stated such a claim in her EEOC charge.
The district court ruled in favor of Fort Bend, holding that Ms. Davis had not satisfied the charge-filing requirement with respect to her claim of religion-based discrimination, and that the requirement qualified as “jurisdictional,” which made it nonforfeitable. The Fifth Circuit disagreed and reversed.
The Fifth Circuit held that Title VII’s charge-filing requirement is not jurisdictional in nature, but rather a “prudential prerequisite to suit.” While Fort Bend could have raised the affirmative defense of failure to exhaust administrative remedies early on in litigation, it had forfeited that right in this instance because it waited until years later, and indeed had not raised the defense until after “an entire round of appeals all the way to the Supreme Court.”
In its decision issued on Monday, the U.S. Supreme Court agreed with the Fifth Circuit that the requirement to bring a charge before the EEOC before proceeding to court is not jurisdictional. However, this does not give every claimant a pass on the requirement that they first avail themselves of relief from the EEOC. The Supreme Court reaffirmed that claimants are required to submit information to the EEOC and wait a specified period before commencing a lawsuit. The court also noted that Title VII’s charge-filing requirement is a mandatory processing rule. Rather, this decision simply requires that employers raise the affirmative defense of failure to exhaust administrative remedies in a timely manner.
What is the takeaway for employers? Ensure that your attorneys have a sufficient understanding and experience with federal employment laws so that they are aware of all appropriate and available affirmative defenses. If given the opportunity, review your attorneys’ pleadings so as to ensure that fact-based affirmative defenses, like failure to exhaust administrative remedies, are cited, where appropriate.
This case also serves as a reminder to defense attorneys to raise affirmative defenses that perhaps may not seem as obvious or crucial on initial review. In this instance, there is an argument that Ms. Davis, by making those notations, did sufficiently bring that claim before the EEOC. There were other defenses to the lawsuit, and the county did, at first, prevail on summary judgment. Even in the end, all claims but one were dismissed. Nevertheless, once the retaliation and intentional infliction of emotional distress claims fell away, and all that remained to be litigated was the religious discrimination claim, every feasible argument in response to an undue hardship claim became all the more critical. Realizing that a case can look very different after years of litigation makes it all the more important to take the time at the beginning of each lawsuit to evaluate each claim carefully, even ones that a plaintiff does not accentuate in a complaint, and consider all different avenues for resolving the matter favorably.