EMPLOYERS: DON’T OVERLOOK YOUR TITLE VII DEFENSES!

Last month the U.S. Supreme Court simultaneously resolved a long-running dispute about procedure under Title VII and sent a message to employers that it is important to pay attention and act promptly when faced with a Title VII lawsuit by a current or former employee.

Title VII is the fundamental federal law prohibiting discrimination in employment on the basis of race, color, religion, sex, or national origin.  It applies to nearly all employers “engaged in an industry affecting commerce” with fifteen or more employees for at least 20 weeks out of the year.  Under Title VII, an employee who claims to have been subjected to discrimination (the “complainant”) files a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”).  The charge must be filed within 180 days “after the alleged unlawful employment practice occurs.”  In a state such as Connecticut, which has its own agency (here, the Connecticut Commission on Human Rights and Opportunities, or “CCHRO”) empowered to grant or seek relief from discriminatory employment practices, and where the agency has a “worksharing agreement” with the EEOC, the complainant may file with either the state or the federal agency, which will relay the charge to the other.

The EEOC or state agency does not actually adjudicate Title VII claims.  It investigates, makes a determination whether there is “reasonable cause” to believe discrimination occurred, and if so, attempts to broker a compromise between the parties.  If the agency does not find reasonable cause, or if it cannot bring the parties to a settlement agreement, the EEOC issues a “right-to-sue letter” to the complainant, who then has 90 days to bring a lawsuit in federal district court.

The dispute resolved by the Supreme Court was over the question whether the statutory requirement to file a charge with the EEOC is “jurisdictional.”  Put another way, does a complainant’s failure to file a charge with the EEOC before coming to court deprive the court of the power and authority even to hear the case?  This is a question on which federal Courts of Appeals have disagreed.

In Fort Bend County, Texas v. Davis, the complainant alleged that she had been sexually harassed (a form of sex discrimination), and that when she reported the harassment, her employer retaliated against her by reducing her responsibilities.  While her charge was pending, she was fired after she was instructed to report for work on a Sunday, but opted to attend church instead.  (She had offered to arrange to have another employee cover her shift, but the employer refused.)  Her charge of discrimination only alleged sex discrimination and retaliation; she did not amend her charge to also allege discrimination on the basis of religion or a failure to accommodate her religious needs.  After receiving her right-to-sue letter, she brought suit alleging both discrimination on account of religion and retaliation for reporting sexual harassment.

Ms. Davis’ case worked its way through the courts over several years.  Fort Bend County won summary judgement in the District Court, but the Court of Appeals reversed as to the religion-based discrimination claim only.  The Supreme Court refused to hear the employer’s appeal of that ruling.  Then, when the case returned to the District Court, Fort Bend argued – for the first time, after more than 4 years of litigation – that the court lacked jurisdiction to decide the case because Davis never filed her charge of religious discrimination with the EEOC.  The District Court then ruled in favor of Fort Bend County.  The Fifth Circuit Court of Appeals reversed.  The Supreme Court then seized the opportunity to resolve the disagreement between various Courts of Appeals.

In a unanimous decision by Justice Ginsburg, the Supreme Court held that the charge-filing requirement is not jurisdictional. That is, when a complainant fails to file a charge of discrimination with the EEOC raising a particular claim of discrimination, but then asserts that claim in a lawsuit, it is the employer’s obligation to raise the failure to file the charge as a defense, and to do it in a timely way.  An employer who fails to raise the defense reasonably early in the proceedings will forfeit the defense. The Court pointed to numerous other federal statutes establishing mandatory claims-processing rules that have previously been declared to be nonjurisdictional, and saw no reason to treat the rule at issue differently.  (The Court didn’t specify exactly the point at which a delay in raising the defense will become a forfeiture, but it is certainly clear that an employer cannot wait until the case has been through “an entire round of appeals all the way to the Supreme Court” and raise it on remand to the District Court.)

The lesson here for employers and their counsel is that when confronted with a Title VII lawsuit, it is important to carefully assess the complaint and all known facts to determine all of the defenses that are available, and then to assert those defenses at the proper time.  Don’t hold a defense in reserve unless you have a well-thought-out reason for doing so.  Use counsel familiar with Title VII cases and the complex web of decisions interpreting the statute.

For Connecticut employers, it remains to be seen whether a similar rule will be applied to suits in Superior Court under the Connecticut Fair Employment Practices Act (“CFEPA”), which is our state statute prohibiting discrimination in employment by employers with at least three employees, and which has a similar charge-filing/conciliation/right-to-sue letter procedure.  Up to now, Connecticut courts have generally treated the failure to file a charge with the CCHRO before coming to court as a jurisdictional defect, but since our courts frequently look to Title VII caselaw in interpreting CFEPA, there is a chance that they will revisit the issue and adopt the new federal rule announced by the Supreme Court in the Fort Bend County case.