In Fort Bend County, Texas v. Davis, the Supreme Court of the United States held that the requirement in Title VII of the Civil Rights Act that an employee file a charge of discrimination with the Equal Employment Opportunity Commission before commencing an action in court is not jurisdictional. For federal court filings, this means that employers may want to make sure to raise the defense that an employee failed to exhaust administrative remedies on his or her Title VII claims at the time it answers the complaint and may also want to consider filing a motion to dismiss. Although this decision has clear implications for Title VII actions, it also may affect the litigation of employment discrimination and retaliation claims under state law, such as claims filed with the Massachusetts Commission Against Discrimination (MCAD) pursuant to M.G. L. Ch. 151B and with the Rhode Island Commission for Human Rights (RICHR) under Rhode Island’s State Fair Employment Practices Act (FEPA).
Likely Impact of Fort Bend County on Massachusetts and Rhode Island Law
For over 30 years, the Supreme Court of Rhode Island and Supreme Judicial Court of Massachusetts have repeatedly looked to federal courts’ interpretations of Title VII when interpreting FEPA and Chapter 151B. Such interpretations are not binding as to the meaning of the state statutes’ provisions, but they are persuasive, particularly where the state statutes and Title VII contain comparable schemes. As a result, Fort Bend County may affect the interpretation of Chapter 151B’s and FEPA’s exhaustion requirements.
In Massachusetts, Fort Bend County’s influence will likely be limited. In Everett v. The 357 Corp., the Supreme Judicial Court of Massachusetts held that an employee’s failure to exhaust his or her administrative remedies on a Chapter 151B claim by filing a charge of discrimination with the MCAD deprived a trial court of subject-matter jurisdiction over that claim. While the Supreme Judicial Court may revisit that holding, for now, the law is settled.
In Rhode Island, however, Fort Bend County may have a greater impact on the interpretation of FEPA’s exhaustion requirements. Unlike the Supreme Judicial Court of Massachusetts, the Supreme Court of Rhode Island has not addressed whether the requirement that employees file FEPA claims with the RICHR before pursuing them in court is jurisdictional. And FEPA and Title VII contain comparable administrative schemes. Both statutes require an aggrieved employee to file a charge with an administrative agency within a certain period of time after the allegedly unlawful action occurred, and they both permit an employee to commence litigation in court only after he or she has filed such a charge. Given these similarities and the absence of any binding Rhode Island precedent on the issue, a Rhode Island court addressing whether it’s jurisdictional that an employee failed to file a charge with RICHR alleging a violation of FEPA might adopt the holding of Fort Bend County and conclude that the charge-filing requirement, while mandatory, is not jurisdictional.
Key Takeaways for Employers
The “raise or waive” rule applicable to affirmative defenses, such as a nonjurisdictional failure to exhaust administrative remedies, may result in employers unwittingly losing their ability to argue that an employee failed to file a charge of discrimination if they do not preserve the argument at the outset of litigation. In jurisdictions where the question whether an employee’s failure to exhaust administrative remedies remains open, such as Rhode Island, employers should consider the likelihood that a court would find the Fort Bend County decision persuasive and should develop their initial litigation strategy accordingly.