A new ruling from the U.S. Supreme Court shows why it’s important for employers and their attorneys to examine whether employees making discrimination claims have exhausted their administrative remedies before going to court. And if an employee claiming discrimination hasn’t done so, it’s up to the employer to promptly raise an objection.
On June 3, the Court issued a unanimous ruling in the case of Davis v. Fort Bend County, a Texas case on appeal from the U.S. 5th Circuit Court of Appeals—which covers Louisiana, Mississippi, and Texas. In the case, a fired county employee added a claim against her employer after the administrative agency phase.
The Supreme Court’s ruling points to the importance of making sure employees have taken all discrimination claims to the Equal Employment Opportunity Commission (EEOC) or a similar state administrative agency before pursuing them in court.
The Court said the requirement to file charges with an agency isn’t a jurisdictional issue, and an employer, therefore, risks losing the opportunity to have a lawsuit dismissed if it doesn’t promptly raise objections to an employee’s failure to exhaust administrative remedies.
‘Failure of Employer’s Lawyer to do That Would Be Malpractice’
Although the ruling is a victory for employees, it doesn’t raise major concerns for employers, according to H. Mark Adams, an attorney with Jones Walker LLP in New Orleans and coeditor of Louisiana Employment Law Letter. The decision opens an avenue for employees to raise claims under Title VII of the Civil Rights Act of 1964 without going first to the EEOC or a similar state agency only if their employers’ lawyers fail to raise that defense in their initial pleadings, he says.
“The failure of an employer’s lawyer to do that would be malpractice,” Adams says. “So, the only thing this decision gives employers to worry about is whether they have competent defense counsel.”
Michael P. Maslanka, an assistant professor with the UNT Dallas College of Law, agrees. Employers always need to match up the claims filed in a lawsuit with the claims filed with the EEOC, he says. If the employee raises a claim in the lawsuit that wasn’t raised before the EEOC, then the employer must object at the time the lawsuit is filed.
The issue before the Court was whether the failure to object at the time of filing meant the employer waived that objection, says Maslanka, editor in chief of Texas Employment Law Letter. “This case says ‘yes’ to that question.”
Martin J. Regimbal, an attorney with The Kullman Firm in Columbus, Mississippi, also says the impact of the Fort Bend County case is limited. Although it isn’t rare for employees to add claims to a lawsuit that they didn’t exhaust before an agency, “I would say it is rare for an employer’s counsel to fail to raise this sooner than Fort Bend County did,” he says. “All this opinion really does is require employers to raise this issue sooner than Fort Bend County did–which was extremely late in the process.” In the Fort Bend County case, the objection was raised years into the lawsuit and after the 5th Circuit had reversed the initial court’s dismissal of the claim.
Regimbal, coeditor of Mississippi Employment Law Letter, says “it might be too much to say this is a one-off case,” but he doesn’t see the ruling changing much about how employers defend discrimination cases.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.