Does Employer’s Waiver of Failure to Exhaust Due to Employer’s Delay Matter in California?

By editor on June 28, 2019

Several weeks ago, the U.S. Supreme Court, in Fort Bend County, Texas v. Davis, No. 18-525, decided that the filing of an EEOC charge is not jurisdictional, and that the defense of failure to exhaust can be waived by the employer’s delay in asserting that defense. The question is, to what extent does it really matter to California employers?

The procedural facts of the case are unusual. Plaintiff supervised fifteen employees and was an information technology manager. She sued under Title VII alleging retaliation for reporting sexual harassment.  She filed an EEOC charge alleging sexual harassment and retaliation. The employer investigated and her supervisor resigned. While the Title VII charge was pending, another supervisor assigned her to work July 2-4 as part of a scheduled technology upgrade. She was devoutly religious and told the supervisor she had a church commitment on Sunday morning but would work the remainder of the three day holiday. She also arranged for another employee to cover her Sunday morning shift. The supervisor threatened to terminate her. Plaintiff went to church, and presumably prayed for her job. But there was no forgiveness given by her supervisor, and she was terminated. (You ask why — why would a supervisor terminate an employee for taking a few hours to go to church? On a Sunday. In Texas. The answer is vaguely hinted at in the briefing – her new supervisor was a close friend of her former supervisor.)

Plaintiff then went back to the EEOC and amended her pending discrimination charge adding the word “religion” in the margin. She checked the “failure to accommodate” box on the EEOC intake form. She did not add anything else to the charge. A right to sue letter issued.

Plaintiff lost her civil case on summary judgment in the district court. The Fifth Circuit upheld the dismissal of the sexual harassment and retaliation claims but reversed the dismissal of the religious discrimination claim. When the case was remanded, the case was several years old. The County then first asserted as a defense that the religious discrimination claim was barred by her failure to state such a claim in her EEOC charge – a “jurisdictional defect.” The County again won summary judgment, and again the Fifth Circuit reversed, leading to a Supreme Court review.

The Supreme Court held in a unanimous decision the EEOC filing requirement was not jurisdictional. However, an employer could prevail on a failure to exhaust defense, so long as the employer timely asserted the defense. (To avoid the need to read the decision, just know that by waiting several years, Fort Bend County waited too long.) But was several years really too long? A good part of that time period involved the first appeal. The defendant-employer couldn’t have amended the answer while the case was on appeal. And when did the employer first see the EEOC’s intake form that listed “failure to accommodate”  – words not appearing on the charging document? The Supreme Court never delves into those questions.

Most employment litigation in California is brought under the Fair Employment & Housing Act and state law – not Title VII. So would the Fort Bend County decision matter in California?  Put differently, would it apply to FEHA-filed cases? Not under current California law. Under FEHA, the California Supreme Court ruled almost twenty years ago that filing an administrative charge before a civil lawsuit is a “jurisdictional prerequisite to resort to the court.”  Johnson v. City of Loma Linda 24 Cal. 4th 61, 70 (2000). However, California law is aligned with the Fort Bend decision on waiver. There are California decisions holding that the failure to promptly raise lack of exhaustion can be waived in the civil action. Mokler v. County of Orange, 157 Cal. App.4th 121 (2007).

It’s a strange case, built on strange facts: If only the employer had let her go to church on Sunday.  The legal point is painfully straightforward:  Always assert a failure to exhaust remedies – it’s like voting in Chicago under Mayor Daley. Early and often.  But the case probably has little relevance to FEHA cases in California.

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