Early Bird Catches the Worm—Employers Can Lose Procedural Defense

In June, the United States Supreme Court made a decision with significant implications for employers defending against discrimination allegations.

In Fort Bend County, Texas v. Davis, the Employer learned the hard way that employers need to be prompt when asserting defenses to discrimination.

In Fort Bend County, an employee claimed she was being sexually harassed at work and filed a claim with the Equal Employment Opportunity Commission. The employee she claimed harassed her was terminated after the company conducted an investigation. Later, the harassed employee was asked to work on a Sunday but did not show up for work in favor of attending a church event, and the County terminated her.

As her sexual harassment claim was already submitted, the employee simply added a claim for religious discrimination to the EEOC intake questionnaire. However, she never formally filed a charge of religious discrimination or formally amend her charge of sexual harassment. The case proceeded through administrative process and the courts, before the County was granted summary judgment by the district court.

When Davis appealed, the appeals court reversed the lower court regarding the religious discrimination claim and sent the case back to the lower court. Back at the lower court, the County argued for the first time Davis needed to formally amend her claim, and her failure to do so meant the court was without jurisdiction to decide the case. The Court agreed and dismissed her religious discrimination claim.

The Supreme Court reversed. The County waited too long to make this argument, resulting in the County waiving its right to assert it. Jurisdictional requirements can be asserted at any time, but other procedural arguments can be waived if they are not asserted at the proper time. Because the County’s argument that Davis should have formally amended her claim was not a jurisdictional one, it needed to make the argument early or lose the right to make it.

What should employers take from this?

• Make sure you handle discrimination claims quickly and thoroughly.
• Retain legal counsel quickly so they can ensure all arguments are on the table as soon as possible.

Taking these steps will help avoid lengthy litigation when discrimination claims come up. The employer in Fort Bend County likely would have ended the lawsuit years earlier had it made the procedural argument quickly. Instead, they were wrapped up in expensive litigation for years. Contact a Goosmann Law Attorney in Sioux Falls, Sioux City, or Omaha today if you have any concerns regarding discrimination claims.