by Michael Fox
A school district thought it had hit a home run -- obtaining dismissal of a sexual harassment lawsuit because the plaintiff's EEOC charge wasn't verified, as required by Title VII and the implementing regulations. And although I have often said (tongue in cheek) that while anyone can win on the facts, it takes a real lawyer to win on a technicality, it is hard to argue with the 3rd Circuit's conclusion here:
Under the circumstances of this case, the School District’s motion to dismiss on the basis of Buck’s failure to verify her charge seems like “an afterthought, brought forward at the last possible moment” to preclude “consideration of the merits”; it can prevail “only from technical compulsion irrespective of considerations of practical justice.” [cite omitted] Given our determination that the verification requirement is not an inflexible bar to suit, but a statutory requirement of the initial charge, with non-compliance amenable to equitable considerations, we cannot countenance this result. Accordingly, we hold that where, as here, an employer has actual notice of a discrimination charge and chooses to respond to the merits of the claim before the EEOC without asserting lack of verification as a defense it waives its right to secure dismissal of the federal court proceedings on that basis. [emphasis added]
Although I haven't given much thought to whether there is a legal argument against the underlying premise, that the requirement for verification is not jurisdictional, given the outcome in Arbaugh v. Y & H Corp. (S. Ct. 2/11/06) [pdf] where a unamininous Supreme Court took less than six weeks after oral argument to pour out a similar "technicality" -- holding the 15 employee requirement of Title VII was not jurisdictional -- I doubt such research would be fruitful.
Since it is hard to imagine that if raised, it would not be corrected, Buck probably consigns another "technicality" to the dustbin. A hat tip to the DLR for alerting me to Buck.