Ruling alerts employers to make EEOC, lawsuit comparisons quickly

Employers should move quickly to compare discrimination allegations made in lawsuits filed against them to previous complaints made to the U.S. Equal Employment Opportunity Commission after a U.S. Supreme Court ruling against an employer who waited too long to object that a regulatory complaint did not match a claim in subsequent litigation, experts say.

The court’s unanimous ruling in Fort Bend County v. Lois M. Davis published on June 3 was a “wake-up call for a lot of people,” said Garret P. Buttrey, an associate with FordHarrison LLP in Nashville, Tennessee.

The court’s ruling revolves around the issue that employees filing suit under Title VII of the Civil Rights Act of 1964 must first file a complaint with the EEOC.

The procedural ruling reminds employers to immediately check if charges in litigation filed under Title VII jive with those in the previously filed EEOC complaint, say experts. If the charges do not match, and employers act immediately, then they can get that claim dismissed, but delaying the action means they may lose that chance, say experts.

If the employer in this case had done that, “then it would never have gone to the Supreme Court,” said Gregory V. Mersol, a partner with Baker & Hostetler LLP in Cleveland. The county’s attorney did not respond to a request for comment.

In 2010, Lois Davis, who worked in information technology for Richmond, Texas-based Fort Bend County, informed the county’s human resources department that her director was sexually harassing her. Following an investigation, the director resigned, but Ms. Davis’ supervisor allegedly began retaliating against her for reporting the harassment by curtailing her work responsibilities.

Ms. Davis filed a charge with the EEOC in March 2011. While the charge was pending, Ms. Davis was told to report to work on an upcoming Sunday. She refused, and was fired when she went to a church event instead.

In an attempt to supplement her charge’s allegations, Ms. Davis handwrote “religion” on her EEOC intake questionnaire under “Employment Harms or Actions,” but made no change to the formal charge document.

Litigation in the case proceeded, with rulings by the U.S. District Court in Houston, the 5th U.S. Circuit Court of Appeals in New Orleans, then back to the District Court, which was left to consider the remaining charge of religious discrimination.

At that point, “years into the litigation,” Fort Bend asserted for the first time that the District Court did not have jurisdiction to adjudicate Ms. Davis’ religious discrimination claim because she had not stated the claim in her EEOC charge.

The 5th Circuit reversed that ruling, stating this was a procedural, not a jurisdictional issue, which meant she could proceed with her case. The Supreme Court, which granted certiorari in the case because of a conflict among the courts of appeal on this issue, agreed.

In her ruling, Justice Ruth Bader Ginsburg said Title VII’s charge-filing requirement is a processing rule, not a jurisdictional prescription, and an objection to it may be forfeited “if the party asserting the rule waited too long to raise the point.”

If the filing requirement is procedural, “it only becomes an issue if the defense is raised by the employer,” but must be done promptly, said Fiona W. Ong, a partner with Shawe Rosenthal LLP in Baltimore.

“In many ways, the ruling is not particularly surprising,” said David E. Morrison, a principal at Goldberg Kohn LLP in Chicago. “It has been the general rule among most courts to consider the EEOC charge filing requirements to be a procedural obligation of the plaintiffs, not necessarily a jurisdictional limit on the courts.”

The ruling is “pretty straightforward” in requiring employers who are sued by employees to compare the lawsuit’s allegations with the claims included in the EEOC’s complaint, and move to dismiss the case if there is any difference between the two, said Paul E. Goatley, an associate with Fisher & Phillips LLP in Louisville, Kentucky.

“Employers just have to be more diligent when they review the EEOC charge together with the complaint,” said Randi B. May, a partner at Hoguet Newman Regal & Kenney LLP in New York.

Mr. Morrison said, “When our clients are sued, one of the first thing things we do is, we will serve a Freedom of Information Act request to the EEOC,” asking the agency to provide it with its files on the case.

The EEOC “typically responds quickly and will provide all the publicly available information from their files,” which includes the boxes checked on the input form and any other information that may be considered part of the charge. At that point, an evaluation is made as to whether the complaint identifies allegations that were brought to the EEOC’s attention, he said.

Karyn l. Bass Ehler, senior counsel and head of the civil rights group at Grant & Eisenhofer PA in Chicago, who represents employees, said employees “also must proceed cautiously because the failure to follow the administrative steps at the EEOC or a comparable state agency … can doom their discrimination claims.”