Frank C. Morris, Jr., Member of the Firm in the Litigation and Employee Benefits practices, in the firm’s Washington, DC, office, was quoted in Law360, in “Supreme Court to Mull Title VII’s Presuit Hurdles,” by Braden Campbell. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Supreme Court on Monday will hear a Texas county’s challenge to a Fifth Circuit decision letting a worker pursue a religious discrimination claim she didn’t make to the U.S. Equal Employment Opportunity Commission first, a case that could resolve a circuit split over what workers have to do before bringing federal discrimination suits. …

What’s at Stake?

Title VII of the Civil Rights Act, which bars workplace discrimination based on age, sex, race and other protected traits, directs workers to file “charges” outlining their allegations with the EEOC or its state or local equivalent. These agencies then investigate the claims, taking action against the accused employer on some allegations and kicking the rest back to the workers who brought them for possible litigation.

Only after an EEO agency has returned the charge can the worker file suit. But whether this is a hard-and-fast prerequisite workers must “exhaust” before filing suit or an administrative protection employers can waive is in dispute. …

Frank Morris, an employment attorney with management-side firm Epstein Becker Green, said the ruling in the Texas dispute will not affect “a huge number of cases” because workers generally file charges. But he speculated it would have a “fairly substantial impact” on retaliation claims, which often arise after a worker files an initial discrimination claim against an employer. If the court says the charge requirement is jurisdictional, workers would have to amend their original charges before they can bring a retaliation claim in a lawsuit, he said. …

What Are the Arguments?

The case will likely turn on what Congress has to say in a law like Title VII, which has an administrative process for righting a wrong and also lets workers file suit, to make that process a rigid prerequisite to suing. …

“Congress made a decision that it would first like to see disputes resolved without litigation,” Epstein Becker’s Morris said. “The way that takes place is for there to be a charge, the commission to investigate, and if the commission finds a reasonable cause, then to attempt a nonlitigation resolution.”

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