Cert granted on whether Title VII exhaustion requirement is jurisdictional

The US Supreme Court has granted certiorari to decide whether Title VII’s administrative exhaustion requirement is a jurisdictional prerequisite to suit, as three Circuits have held, or a waivable claim processing rule, as eight Circuits have held. Title VII requires plaintiffs to exhaust claims of employment discrimination with the EEOC before filing suit in federal court. Fort Bend County v. Davis (US Supreme Ct cert granted 01/11/2019) [Order].

The 4th, 9th, and 11th Circuits hold that exhaustion is jurisdictional, so courts lack subject matter jurisdiction over claims that were never presented to the EEOC. The 1st, 2nd, 3rd, 5th, 6th, 7th, 10th, and DC Circuits treat failure to exhaust as a claim processing rule that is subject to waiver, forfeiture, and other equitable defenses. The Department of Justice is on record as describing Title VII’s exhaustion requirement as jurisdictional, and the EEOC has taken the position that it is not jurisdictional.

The Court will review the 5th Circuit's judgment in Davis v. Fort Bend County (5th Cir 06/20/2018) [PDF], which held that the defendant forfeited its exhaustion argument by not raising it in a timely manner before the district court.

[Subscribe to Employment Law Memo]

Catholic school fired teacher after she got breast cancer

Is a fifth grade teacher at a Catholic school a “minister” for purposes of the ministerial exception? Court says “No” 2-1.

Catholic school fired teacher after she got breast cancer and asked for time off. Is she a minister? Part of a series - Employment Law Case of the Week - by Ross Runkel.

Kristen Biel was fired from her fifth grade teaching position at a Catholic school after she told her employer that she had breast cancer and would need to miss work to undergo chemotherapy. The trial court granted summary judgment to the employer on the ground that the 1st amendment's ministerial exception barred her claim under the Americans with Disabilities Act. The 9th Circuit reversed, 2-1. Biel v. St. James School (9th Cir 12/17/2018) [PDF]

The court applied the analysis in Hosanna-Tabor v. EEOC to conclude that, under the totality of the circumstances, Biel did not qualify as a "minister" for purposes of the ministerial exception.

  1. The school did not hold Biel out as a minister by suggesting to its community that she had special expertise in Church doctrine, values, or pedagogy beyond that of any practicing Catholic.

  2. Biel's title "Grade 5 Teacher" did not reflect any religious meaning. There was no religious component to her liberal studies degree or teaching credential, and the school had no religious requirements for her position.

  3. Nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.

  4. Biel taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum, as the school required.

The DISSENT argued that Biel was "entrusted with teaching and conveying the tenets of the faith to the next generation." The substance reflected in her title and the important religious functions she performed outweigh her formal title and whether she held herself out as a minister.

Filing an EEOC charge is not jurisdictional

40 years of precedent – gone.

The 10th Circuit has held that an employee's failure to file an EEOC charge is not a jurisdictional barrier to filing a discrimination suit. Instead, it merely permits the employer to raise an affirmative defense of failure to exhaust. Lincoln v. BNSF Railway Company (10th Cir 08/17/2018) [PDF].

After becoming partially permanently disabled (and unable to work outdoors), two employees each applied for more than 20 jobs and were rejected. The employees sued claiming violation of the Americans with Disabilities Act (ADA) – discrimination, failure to accommodate, and retaliation. The trial court dismissed several claims for lack of jurisdiction on the ground that filing an EEOC charge was a jurisdictional prerequisite to suit. The trial court granted summary judgment for the employer on the other claims.

The 10th Circuit analyzed cases dealing with both timeliness and total failure to file an EEOC charge under Title VII and the ADA. Then the three-judge panel checked in with all active judges in the Circuit and got their concurrence. Then they overruled their prior cases.

The court remanded for the trial court to determine whether the employer had waived its affirmative defense.

On the merits of several claims the court held that the employees were not qualified for the jobs they applied for or that other employees were more qualified, and that the employees did not show that the employer's proffered reasons were pretextual. As for a small number of claims as to which there were triable issues of fact, the court remanded for reconsideration.

$277,565 plus $445,322 for diabetic who was not accommodated

The EEOC and Atkins sued the employer for violation of the Americans with Disabilities Act (ADA) alleging failure to accommodate and discriminatory discharge claims. The jury found in favor of Atkins on both claims and awarded $27,565 in back pay and $250,000 in compensatory damages. The trial court awarded Atkins' lawyers $445,322 in attorney fees. The 6th Circuit affirmed. EEOC v. Atkins (6th Cir 08/07/2018) [PDF].

Atkins, a diabetic, had two incidents while working as cashier, requested an accommodation of keeping orange juice at her register, but the store manager told Atkins it was against company policy. The manager failed to explore any alternatives and never relayed the matter to a superior. Eventually, Atkins took some juice from a store cooler and drank it before paying for it. And the employer fired her for violating the employer's ant-grazing policy.

The court found that the jury had ample evidence to conclude that the employer failed to provide Atkins reasonable alternatives to keeping orange juice at her register.

Regarding discriminatory discharge, the court explained a company may not illegally deny an employee a reasonable accommodation to a general policy (anti-grazing policy) and use that same policy as a neutral basis for firing her. Hence "failure to consider the possibility of reasonable accommodations for known disabilities, if it led to discharge for performance inadequacies resulting from disabilities, amounted to a discharge solely because of the disabilities."

Male-on-male "horseplay" leads to Title VII liability.

There's no federal law prohibiting harassment, or bullying, or physical horseplay. So when does male-on-male “sexual horseplay” cross the line and become what Title VII prohibits – discrimination against an individual “because of such individual’s … sex”? Smith v. Rosebud Farm (7th Cir 08/02/2018) [PDF] provides one rather simple example – a mixed‐sex workplace where men and women interacted daily, and only men were groped and taunted.

Smith's Title VII claim that he suffered several years of ongoing sexual and racial harassment from his male coworkers and supervisor resulted in a jury verdict in his favor. The 7th Circuit affirmed, turning away the employer's assertion that Smith’s evidence demonstrates that the other men in the shop engaged in “sexual horseplay,” and not sex discrimination.

Smith was a butcher in a small grocery store. Soon after he started, male coworkers behind the meat counter began harassing him by grabbing his genitals and buttocks, and repeatedly mimed oral and anal sex. His supervisor not only knew about the harassment, but he even participated once or twice. After four years of this, Smith filed EEOC charges claiming sexual harassment and race discrimination. His supervisor then told employees to stop “goofing off” and “horseplay,” but the employees began banging their cleavers menacingly at him and passing by him with large knives pointing out of the meat trays they carried.

The employer's post-verdict motion asserted that Smith failed to prove that his male coworkers discriminated against him because of his sex. Title VII does not ban all harassment. It prohibits harassment that discriminates against an individual “because of such individual’s … sex.” The 7th Circuit pointed out that Smith offered direct comparative evidence that only men, and not women, experienced the kind of treatment that he did, so "the jury was free to conclude that these men discriminated against him on the basis of sex."

The employer argued that this direct comparative evidence is insufficient because only male employees worked behind the meat counter. The court noted that in an all‐male environment there would be no inference of sex discrimination. But this was a mixed‐sex workplace where men and women interacted daily, and only men were groped and taunted. Because men were treated differently from women, a reasonable jury could conclude that Smith was tormented because of his sex. And that's what the jury did.