Employee Wins at SCOTUS

Employee Wins at SCOTUS

A new U.S. Supreme Court case, Fort Bend County v. Davis, will allow an employee to pursue her discrimination case in court, even though she did not file a charge with the Equal Employment Opportunity Commission. But how will it affect other employees in the future?

The court’s unanimous decision, written by Justice Ruth Bader Ginsburg, ruled in a case where the employee did not file with the EEOC, and the employer did not object for five years. Under those facts, the court held the employee could proceed with the lawsuit. But the impact of the case for other employees is likely to be minimal. If the employee files a lawsuit without going to the EEOC, and the employer files a timely motion, the employee’s case can still be dismissed for failure to file with the EEOC.

As Justice Ginzburg wrote, it would be “foolhardy” for an employee not to file with the EEOC, with the hope that the employer wouldn’t object. On the other hand, there may be cases in the pipeline now, or that get filed later, where defense counsel misses this defense until it’s too late.

That’s why employers should always hire experienced employment lawyers to defend these cases, not general practice or business lawyers. There are finer points of practice that are unique to employment law.

By R. Makana Risser Chai

Makana Risser Chai is a trainer, HR consultant and former Silicon Valley attorney who specializes in teaching courses on creating respectful workplaces by preventing harassment, bullying, disrespect, and unconscious bias.