Procedural Requirement of Filing Charge of Discrimination can be Waived by Employer

The Supreme Court of the United States clarified the impact of a claimant’s failure to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and held that this mandatory claim-processing step will be waived by the employer if it fails to assert the procedural deficiency in a timely manner.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin and also prohibits retaliation against persons who assert claims under the Act. As a precondition to the filing of a Title VII action in court, the complaining party must first file a charge of discrimination with the EEOC. A question which has divided courts is whether the filing of a discrimination charge is a jurisdictional prerequisite that can be raised at any time or merely a procedural requirement that will be deemed waived if not timely asserted by the employer.

Title VII requires that a “charge…shall be filed” with the EEOC “by or on behalf of a person claiming to be aggrieved” within 180 days “after the alleged unlawful employment practice occur[s]”. In states (like Ohio) or political subdivisions that have a fair employment agency empowered to grant or seek relief (the Ohio Civil Rights Commission), Title VII directs the complainant to file a charge first with the state or local agency.

The complainant then will have 300 days following the challenged practice or 30 days after receiving notice that the state or local proceedings have ended, whichever is earlier, to file a charge with the EEOC. In states like Ohio which maintain a work sharing agreement with the EEOC, the complaining party may file the charge of discrimination with one agency, and the agency will then relay the charge to the other.

In Fort Bend County, Texas v. Davis, the Supreme Court held that, because the filing of a charge of discrimination with the EEOC is not jurisdictional but merely a procedural prerequisite to the filing of a suit, the employer’s failure to assert in answer to the employee’s court complaint the employee’s lack of a charge filed with the EEOC, the procedural deficiency was deemed waived, and the employee was free to pursue her claims.

The employee-claimant was Lois M. Davis, an information technology worker employed by Fort Bend County, Texas. In 2010, she informed the county’s human resources department that Charles Cook, the director of information technology, was sexually harassing her. The investigation of her claims led to Cook’s resignation. Following Cook’s resignation, Davis’ supervisor began retaliating against her. Davis then filed a charge of discrimination with the EEOC to seek redress for harassment and retaliation. While that charge was pending, Davis was ordered to work on a Sunday.

She informed her supervisor that she had a conflict due to a church commitment and offered to arrange for another employee to replace her at work. The supervisor rejected the offer and ordered her to work or face termination. Davis attended church instead of reporting for work, and the county immediately fired her. Davis then supplemented her charge of discrimination by indicating on her EEOC intake questionnaire that she had been discharged due to her religion and the county’s failure to accommodate her. She made no change to her formal charge document.

She was notified of her right to sue, and she filed suit against the county shortly thereafter asserting that she had been discharged because of her religion and in retaliation for reporting sexual harassment. Years into the litigation, the county asserted for the first time that the court lacked jurisdiction to consider Davis’ claim of religion-based discrimination because she had not stated such a claim in her formal EEOC charge. The trial court dismissed her claim, but the court of appeals reversed.

The Supreme Court affirmed the appellate court and rejected definitively the assertion that an employee’s failure to file a specific charge of discrimination deprives the trial court of jurisdiction, the authority to hear and rule upon the claims. The Court explained that the filing of such a charge was a procedural requirement for the processing of a claim under federal law but that the requirement should be deemed waived if not asserted in a timely manner – in the employer’s answer to the complaint.

The Supreme Court’s decision makes it clear that an employer must immediately assert any procedural deficiency when faced with an employee’s litigation claims of discrimination or it will be deemed to have waived the deficiency. The Court’s decision in Davis might become persuasive authority with respect to Ohio state law claims, particularly because it enhances procedural protections for employees. Ohio employers must bear in mind, however, that employees in this State have the right to sue their employers directly on discrimination claims under state law without having to pursue remedies through the EEOC or the Ohio Civil Rights Commission. By exercising that right, employees can eliminate the risk of a court’s dismissal of a claim due to a procedural deficiency.