Monday, August 3, 2015

When can Title VII plaintiffs file suit without an EEOC charge?

Title VII has a built-in mechanism that delays the lawsuit until everyone brings their arguments to the Equal Employment Opportunity Commission, which has to investigate the claim and try to resolve it if the claim has any merit. After six months, though, the plaintiff can withdraw the claim from the EEOC and file suit in federal court. What happens if the plaintiff does not bring his claims to that federal agency before filing the lawsuit?

The case is Fowlkes v. Ironworkers Local 40, decided on June 19. Fowlkes -- born biologically female but now self-identifying as a man -- worked for a union that denied him work on account of his gender. His pro se lawsuit did not allege that he had filed an action with the EEOC before suing in federal court. The Supreme Court said in 1982 that a timely EEOC filing is not a jurisdictional requirement but instead a requirement that is subject to defendant's waiver, estoppel and equitable tolling. In other words, plaintiffs can sometimes get away with not filing first with the EEOC.

The district court overlooked this case law in dismissing plaintiff's lawsuit for failure to file with the EEOC. "By treating the issue of subject matter jurisdiction as a threshold matter here, the District Court did not consider any potential equitable defenses that Fowlkes might present to excuse his failure to exhaust his administrative remedies." So the Court of Appeals (Leval, Chin and Carney) considers whether plaintiff can get around the failure to file an EEOC action, and remands the case to the district court to address these questions in the first instance.

First, the Court of Appeals notes that "when an agency has previously 'taken a firm stand' against a plaintiff's position, the plaintiff's failure to exhaust administrative remedies may be excused on the ground that exhaustion would be futile." The Second Circuit says, "Though our Circuit has not had occasion to consider this particular equitable defense in the context of EEOC Title VII exhaustion, Fowlkes may have a colorable argument that filing a charge alleging discrimination based on his transgender status would have been futile. When Fowlkes filed his 2011 complaint, the EEOC had developed a consistent body of decisions that did not recognize Title VII claims based on the complainant's transgender status." Since plaintiff's EEOC charge on this ground would  have gotten nowhere, his "failure to exhaust could potentially be excused on the grounds that, in 2011, the EEOC had 'taken a firm stand' against recognizing his Title VII discrimination claims." (The Court of Appeals notes that, after Fowlkes filed this case, the EEOC did recognize that Title VII prohibited transgender discrimination).

Second, failure to exhaust may be excused because plaintiff's "more recent allegations of discrimination may be 'reasonable related' to the discrimination about which he had filed an earlier charge with the EEOC." In plaintiff's federal lawsuit, he alleged that the union denied him work in retaliation for an earlier EEOC charge"Given the contents of Fowlke's amended complaint and the close resemblance that it bore to his earlier EEOC charge, his more recent allegations may be 'reasonably related' to those included in his earlier administrative filing with the EEOC."

Fowlkes also plead a Duty of Fair Representation claim against the union, and that claim is also reinstated. The pro se claim is not well drafted (few are), but the Court of Appeals gives him the benefit of the doubt and finds that plaintiff alleged the union denied him work because of his transgender status and because he had previously sued the union for discrimination.

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