Fort Bend County, TX v. Davis:
Increased Flexibility For Employment Discrimination Plaintiffs
On June 3, 2019, the U.S. Supreme Court introduced some flexibility into the requirement that employees “exhaust all administrative remedies” before suing their employers for discrimination under Title VII of the Civil Rights Act of 1964. In Fort Bend County, Texas v. Davis, __ S.Ct. __, 2019 WL 2331306, the high court held that if an employee fails to assert a particular discrimination claim in her administrative complaint, and the employer-defendant does not timely object, then a federal court may hear the discrimination claim, and is not jurisdictionally-barred from doing so.
Generally, before a worker may sue her employer for unlawful discrimination under Title VII, she must first timely file a claim with either the Equal Employment Opportunity Commission (EEOC) or with an equivalent state agency, such as California’s Department of Fair Employment and Housing (DFEH). Only after the worker has filed this administrative complaint and has received a “right to sue” letter from the EEOC (or equivalent state agency), may she file a civil lawsuit in connection with the conduct complained of.
In Fort Bend County, TX v. Davis, employee Lois Davis filed an EEOC claim against her employer, Fort Bend County, alleging sexual harassment and retaliation. While Davis’ EEOC charge was pending, Fort Bend County instructed her to come in to work on a Sunday. Davis informed her supervisor that she had a church commitment that Sunday, and offered to arrange for another employee to cover her shift instead. The supervisor responded by telling Davis that if she did not come in, she would be subject to termination. Davis did not come in that Sunday, and was consequently terminated.
Despite this new, actionable conduct involving religious discrimination, Davis did not change her pending EEOC complaint or submit a new one. Rather, once she received her “right to sue” notice, she commenced a civil action in the United States District Court for the Southern District of Texas, alleging the existing claims of sexual harassment and retaliation, and also the new claim of religious discrimination. Fort Bend moved for summary judgment on all claims and the district court granted that motion. Davis appealed the decision, and the Fifth Circuit affirmed the district court’s decision on retaliation, but reversed on religious discrimination.
On remand to the district court, Fort Bend tried a different tactic, this time arguing that Davis’ religious discrimination claim should be dismissed due to Davis’ failure to include that claim in her EEOC complaint. Specifically, Fort Bend claimed that the district court lacked subject matter jurisdiction over Davis’ religious discrimination claim, because Davis had not “exhausted all administrative options” for that claim by including it in her administrative complaint. The Fifth Circuit disagreed, holding that the requirement to exhaust all administrative remedies is not jurisdictional, such that a failure to include a claim at the administrative level would preclude a court’s review thereof, but rather is a “prudential prerequisite to suit” that Fort Bend waived by waiting until after a round of appeals to first raise the issue.
The United States Supreme Court ultimately agreed with the Fifth Circuit, and held that the Title VII charge-filing precondition to a lawsuit is not a jurisdictional requirement. The Supreme Court held that while employees remain obligated to timely file an EEOC complaint prior to suing their employer for discrimination under Title VII, if an employee fails to include a particular discrimination claim in the EEOC complaint, and if defendants do not timely object to that failure, then a court is not precluded from hearing that claim.
What Does this Mean for California Workers?
Although Davis discusses discrimination claims brought pursuant to Title VII, the holding will likely be applied to California workers bringing discrimination claims under the Fair Employment Housing Act (FEHA), which is the California law equivalent to Title VII, and prohibits discrimination in the workplace for certain protected classes. Indeed, in light of the similar statutory purposes between Title VII and FEHA, California courts often adopt the standards established by the Supreme Court in Title VII cases. See e.g. Los Angeles County Dept. of Parks & Recreation v. Civil Services Comm’n (1992) 8 Cal. App. 4th 273, 280.
As such, workers suing their employers in California state court should include all viable claims of discrimination in their civil lawsuits, even those claims that were not raised in their administrative complaint with the EEOC or DFEH, since there is a chance that their employers will waive any objection and such claims may therefore proceed in court. That said, the best practice is to ensure that the administrative complaint includes all known grounds for discrimination, and if new discriminatory conduct takes place or is discovered after submitting the administrative complaint, the administrative complaint should be amended to include the new claims, to avoid a battle on this point down the line.
– Dorothy Yamamoto is an associate at Dhillon Law Group Inc.
