Failing to Point Out the Other Side’s Fail

Last week, the U.S. Supreme Court answered a notable question in the world of employment litigation.

Does it matter that an employee failed to follow the “right-to-sue” process before suing for discrimination, if the employer never complains? The answer: No. What if the employer does complain but takes its sweet time doing so? The answer: Still probably no.

For background, you may know that federal law bans employment discrimination on the basis of sex or religion, among other things. It also bans retaliation against people who assert their rights under the law.

But to sue in court, you have to file a complaint with the Equal Employment Opportunity Commission (EEOC) first. You have six months to do it from the time of the alleged discrimination. Then the agency has six months to investigate whether to take up your case. If it doesn’t, it will give you what’s called a right-to-sue notice. That’s your ticket to go to court, and you then have three months to file your lawsuit. There’s more to it than that, but in general, that’s the rule. If you don’t follow it, you can lose your case in court.

In this case, the plaintiff did follow the rule at first. She filed a complaint with the EEOC for sexual harassment and retaliation. Afterward, her employer told her to report to work on a Sunday, but she said she had to go to church that day. She offered to have someone cover for her. The employer told her to report to work or find another job. She chose to go to church.

She got canned, but she didn’t amend her EEOC complaint to add a new claim based on religion. She did, however, add the religion claim to her lawsuit after she got her right-to-sue notice.

Years later, it was the only claim left after her case went from the trial court to the court of appeals and back.

It was only then that the employer complained, for the first time, that she hadn’t raised the religion claim in her EEOC complaint. The trial court agreed and tossed her lawsuit.

But the court of appeals reversed, and last week, the Supreme Court affirmed. Since the employer hadn’t raised the issue for so long, it had waived the argument.

The decision won’t change much for employees who file these cases. They still have every reason to follow the right-to-sue process or they risk losing right out of the gate.

But it’s a word of caution to employers to raise the issue promptly if it exists, or you’ll waive a winning defense.