Tag Archives: EEOC charge

May 31, 2017

Sexual Harassment Claim May Proceed Despite Lack Of Specificity In EEOC Charge

By Brad Cave

The Tenth Circuit recently reversed the dismissal of a quid pro quo sexual harassment claim and sent it back to the trial court for a trial, rejecting the employer’s argument that the required, pre-lawsuit EEOC charge did not allege quid pro quo harassment.

Labeling Between Two Forms of Harassment Not Required

Most human resource professionals recognize that two forms of sexual harassment are prohibited under Title VII’s ban on sex discrimination. Quid pro quo harassment arises when a supervisor demands sexual favors from a subordinate in exchange for the receipt or withholding of a term or condition of employment. Hostile work environment harassment occurs when sufficiently severe or pervasive offensive conduct creates an intimidating, hostile, or abusive work environment. This distinction has been recognized for decades by the courts as two variations of prohibited sexual harassment.

Despite the widespread acceptance of these two recognized forms of unlawful harassment, neither Title VII nor its regulations use the “quid pro quo” or “hostile work environment” labels. As the Tenth Circuit Court of Appeals (whose decisions apply to Wyoming, Colorado, Utah, Kansas, New Mexico, and Oklahoma) recently pointed out, these labels began in academia and then were adopted by the courts. But, according to the Court, despite the ability of the labels to describe the alternate ways that sexual harassment may occur, the labels themselves are not wholly distinct claims. They both raise a claim of sex discrimination in the workplace in violation of Title VII.

Because a claim of sex discrimination encompasses both types of sexual harassment, the majority of the Tenth Circuit three-judge panel concluded that a former employee’s EEOC charge need only allege sufficient facts to alert his former employer of the alleged violation without having to specifically label which form of harassment is being alleged. Jones v. Needham, No. 16-6156 (10th Cir., May 12, 2017).

Male Mechanic Alleged Female Supervisor Made Sexual Advances

The case at issue arose when Bryan “Shane” Jones alleged that he was fired because he refused to have sex with his direct supervisor, Julie Needham. Jones worked as a mechanic for Needham Trucking, of which Ms. Needham was also a shareholder.

To file his claim with the EEOC, Jones completed an intake questionnaire on which he checked the boxes for “Sex” and “Retaliation” as the basis for his charge. He also wrote in sex harassment on the form. Moreover, he identified two witnesses that he claimed would testify that they knew of the sexual harassment and provided that another mechanic was treated better because he had sex with Ms. Needham. He also prepared an attachment to provide more details of his claim, including the statement that “I was terminated because I refused to agree to Ms. Needham’s sexual advances and I rejected all such efforts by her.”

EEOC Issued Right-to-Sue Letter After Preparing An Abbreviated Charge

Unbeknownst to Jones, the EEOC apparently did not receive the separate attachment to his intake questionnaire. Instead, the EEOC prepared a charge form based on the intake questionnaire alone. That charge form stated that during his employment, Jones was subjected to sexual remarks by owner, Julie Needham, that he complained about the sexual harassment to the general manager and other owners and nothing was done, and that Needham terminated his employment. The charge did not specify the additional information that Jones had written in his would-be attachment about Needham’s sexual advances.

After the EEOC issued Jones a right-to-sue letter, he filed a lawsuit in federal court alleging sexual harassment and other state-law claims. Although his complaint initially pursued his sexual harassment claim on both a hostile work environment and quid pro quo basis, he later dropped his argument based on a hostile work environment.

District Court Dismissed Quid Pro Quo Claim For Failure To Exhaust Administrative Remedies

Looking at whether Jones’ EEOC charge form sufficiently alleged sexual harassment, the district court appeared to find it deficient because the form did not include the missing attachment that spelled out the quid pro quo allegations. Relying on precedent that a plaintiff’s claim in federal court “is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC,” the district court dismissed Jones’s sexual harassment claim, holding that Jones had failed to exhaust his administrative remedies for his quid pro quo sexual harassment claim.

Jones appealed to the Tenth Circuit, which revived his claim upon finding that the charge form contained sufficient allegations to trigger an investigation that would look into “what [Needham’s] sexual remarks were, why Mr. Jones was fired, and whether the two events were connected.” As described above, the Tenth Circuit refused to require that the charge be more specific as to the type or form of harassment alleged.

Lesson: Investigate All Possible Harassment Without Regard For Labels

Although Jones’s employer, Needham Trucking, argued that the facts alleged in the EEOC charge failed to provide it with notice that Jones was alleging quid pro quo harassment, the Tenth Circuit didn’t buy that argument. Instead, it expected the employer to investigate and respond to the facts that were in the charge regardless of whether they supported a hostile work environment or quid pro quo claim. Consequently, employers should investigate all facts in an EEOC charge and let their investigations follow where the facts take them.

Failure to exhaust administrative remedies is a very viable and useful defense when an employee’s lawsuit alleges claims outside of the allegations found in the EEOC charge. But when it comes to sexual harassment, don’t get too caught up in any labels regarding the theory of harassment being alleged. If the facts allege a claim under either (or both) forms of harassment, the charge may very well be sufficient.

June 10, 2015

Employers Must Raise Defense of Unverified EEOC Charge or It Is Waived

Gutierrez_SBy Steven M. Gutierrez 

According to the Tenth Circuit Court of Appeals, verifying an EEOC charge is not a jurisdictional requirement, necessary to give the federal courts the authority to resolve the case; rather, the Court ruled that verifying an EEOC charge is a condition precedent to filing a Title VII lawsuit in federal court, which may be waived if the employer does not challenge it when first responding to the lawsuit. Gad v. Kansas State University, No. 14-3050 (10th Cir. May 27, 2015). 

Verification of EEOC Charge 

Title VII, the federal statute that prohibits employers from discriminating on the basis of race, color, national origin, sex or religion, requires that claimants submit a charge to the EEOC prior to filing suit in federal court. That submission must be “in writing under oath or affirmation.” EEOC regulations require that the written charge be signed and verified, which means sworn under penalty of perjury or affirmed before a notary public, an EEOC representative or another person authorized to administer oaths. 

So what happens if the individual asserting discrimination does not verify his or her EEOC charge prior to filing suit? Does the employer-defendant have to raise the issue of the unverified charge, or does the lack of compliance with the verification requirement mean that the federal court lacks jurisdiction to hear the case at all? 

Verification Not a Jurisdictional Prerequisite to Title VII Lawsuit 

Not every defect in the administrative process defeats jurisdiction, rendering federal courts without authority to hear the case, pointed out the Court. After discussing previous U.S. Supreme Court cases that examined Title VII jurisdictional issues, the Tenth Circuit focused on four key points: 

  1. Whether a Title VII statutory requirement is jurisdictional or not depends on whether it is written within Title VII’s jurisdictional subsection – here, the verification requirement is contained in a separate provision that does not deal with jurisdiction of the district courts;
  2. Because non-lawyers initiate Title VII processes, courts should not interpret procedural rules in a way that deprives individuals of their rights under the law – here, interpreting the verification requirement as jurisdictional might lead to inadvertent forfeiture of Title VII rights;
  3. Verification is intended to protect employers from the burden of defending against frivolous claims or claims of which they had no notice – here, because verification remains a Title VII requirement, an employer may raise the plaintiff’s failure to satisfy the requirement as a defense, which serves to protect employers; and
  4. Failure to verify a document as required by a federal rule should not render the document fatally defective – here, if a claimant’s failure to verify destroyed subject-matter jurisdiction, it would make the charge fatally defective by destroying a court’s ability to hear the case at all. 

Based on its analysis of these four points, the Court concluded that the EEOC verification requirement is not jurisdictional. 

Lack of Verification As Defense 

Because verification of the EEOC charge remains a Title VII requirement, an employer defending a Title VII discrimination claim may raise a plaintiff’s failure to satisfy the requirement and seek dismissal of the case on that basis. The Court likened the verification requirement to other Title VII requirements that have been deemed non-jurisdictional, waivable defenses. For example, compliance with the statutory time limit for filing EEOC charges is prerequisite to bringing a Title VII suit in federal court that has been ruled to be subject to waiver and estoppel. Similarly, TitleVII’s application to employers with 15 or more employees has been determined to be a non-jurisdictional requirement that is waivable by an employer. Consequently, if an employer fails to raise a known verification defect during the EEOC proceeding, it likely waives the requirement and the case proceeds. 

Waiver Left For Further Analysis 

Because the district court in Gad had dismissed the plaintiff’s case for lack of subject-matter jurisdiction, it had not examined the issue of waiver of the defense. The Tenth Circuit noted that Gad had not argued that her employer, Kansas State University (KSU), had waived the verification requirement. (In its answer, KSU stated generally that Gad had failed to exhaust her administrative remedies but did not specifically mention her failure to verify her EEOC charge.) Instead, Gad argued only that the EEOC had waived the verification requirement, due to an EEOC investigator allegedly telling Gad that she did not need to return the signed EEOC form. 

In reversing on the jurisdictional issue, the Tenth Circuit sent the case back to the district court to determine whether the verification requirement had been waived. The Court stated that despite the conclusion that an employer may waive the verification defect, it “does not necessarily follow that the EEOC can waive the requirement unilaterally.” But, the Court noted that there may be extreme circumstances where non-compliance with the verification requirement might be excused, such as negligent EEOC conduct that would mislead a reasonable layperson into thinking that he need not verify the charge. The Court refused to define the scope or parameters of a waiver rule, as that specific issue was not before the Court. 

What This Case Means to You 

When faced with a Title VII lawsuit, get a copy of the EEOC file at the earliest possible moment and check whether the claimant’s EEOC charge was verified. If not verified, you should seek dismissal of the proceeding on the basis that the claimant failed to verify his or her EEOC. If you choose to respond to the merits of the lawsuit ,without asserting lack of verification as a defense, you have likely waived that requirement.

It does not, however, appear that you should always raise the issue of lack of verification prior to your first response to the federal lawsuit. That is because an EEOC regulation permits “an otherwise timely filer to verify a charge after the time for filing has expired” and to cure technical defects or omissions, including failure to verify the charge. Consequently, if you point out the defect at any time prior to the claimant filing the lawsuit, the claimant will likely be able to amend their charge to correct the verification defect.  But you should always raise the defense before responding to the merits of the charge of discrimination to ensure that you do not waive the defense. 

Less clear, however, is the issue of an EEOC waiver of the verification requirement. Because the Court did not define the circumstances, if any, under which a claimant may argue that the EEOC did not ask for or require verification, we must wait for further guidance before knowing whether a claimant may proceed with a Title VII lawsuit even after you’ve raised the unverified charge defense.

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