Monday, June 3, 2019

Title VII filing requirements are not jurisdictional

There are rules, and then there are rules. In litigation, some rules are more rock-solid than others. Some requirements must be satisfied before the case can go any further, and some rules are mandatory but the case can proceed anyway if the opposing party does not object to the oversight. This case involves these rules in the context of Title VII's requirement that the plaintiff must file a charge with the EEOC before she can litigate the case in court.

The case is Fort Bend County v. Davis, issued by the Supreme Court on June 3. If you suffer discrimination on the basis of race, gender, color, religion or national origin, you cannot go to court unless you have exhausted the EEOC filing requirements. In New York, that means you have 300 days to file with the EEOC, which then investigates the case and may try to reach a settlement. If those efforts fail, you can go to court within 90 days after the EEOC closes out the file.

The EEOC filing requirements are not difficult, but you have to set forth the basis for the alleged discrimination. In this case, plaintiff brought an EEOC charge alleging sexual harassment and retaliation for complaining about the harassment. She then tried to amend the charge to allege religious discrimination after she was fired for missing work on a Sunday and going to church instead. On the EEOC "intake questionnaire," she wrote in "religion" as the basis for the discrimination, but she did not formally amend her charge; that oversight was apparently a mistake on plaintiff's part. The employer presumably did not notice this error until late in the game, when it moved to dismiss plaintiff's charge because she did not properly complete the form.

What is the effect of Davis's failure to complete the form properly? Did the employer properly object, or was that objection waived? The courts place errors like Davis's into two piles: jurisdictional errors and claim-processing errors. Jurisdictional requirements are mandatory, and the court can dismiss the case even if the other side does not not object, or if they take forever to object. An example of this is the requirement that federal courts cannot hear claims over which they do not have subject matter jurisdiction. Claim-processing rules are also mandatory, but the objection to a bad filing can be waived.

We know that a court rule or filing requirement is jurisdictional or claim-processing by reviewing the statute. The Court says this:

While not demanding that Congress “incant magic words” to render a prescription jurisdictional, the Court has clarified that it would “leave the ball in Congress’ court”: “If the Legislature clearly states that a [prescription] count[s] as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue[;] [b]ut when Congress does not rank a [prescription] as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”
Under this standard, the EEOC filing requirement is not jurisdictional but a claim-processing rule. "Title VII’s charge-filing provisions 'speak to . . . a party’s procedural obligations.' They require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action. . . . Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts."

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