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Employee Allowed to Pursue Claim Despite Failure to Follow Rules

One of the first things a savvy employer or employer's attorney may do upon receipt of a claim, charge, or complaint, is look for deficiencies which may serve as a bar to suit. 

Employees' claims are frequently dismissed for "technicalities," such as failure to file a claim on time, failure to file in the appropriate forum or jurisdiction, failure to sue the right party, and failure to include required information/documentation. In this case, the employee made one such failure, but the court allowed the matter to proceed regardless. 

In Gad v. Kansas State University, No. 14-3050 (10th Cir. May 27, 2015), the school hired Professor Gad as a part-time assistant professor. She later asked to be promoted to a full-time position or to membership on the graduate faculty. She never received either promotion. 

As a result of not being promoted, Professor Gad filed a charge with the EEOC claiming that she was discriminated against based on her religion, sex, and national origin because promotions were given to other individuals but not her.

The EEOC sent Professor Gad a formal charge document to sign and verify. She never did. Title VII requires a claimant to verify the charges against an employer.  

In the end, the EEOC did not pursue her case, but Professor Gad brought an individual Title VII action against the school. The district court found that it lacked jurisdiction due to the lack of a verified charge and dismissed the case. 

On appeal, the Tenth Circuit Court of Appeals reversed. The court concluded that Title VII does not make the verification requirement jurisdictional and thus failure to follow this particular rule does not mean that suit cannot be filed. The court recognized that the failure to verify the charge could still be asserted as a defense by the employer, but in the end, it was not a jurisdictional bar.

Employers should always review any agency charges or complaints to determine if any deficiencies exist on the face of the document which may provide a defense to a claim. While the court would not dismiss the case due to the deficiency here, the employer was still permitted to move forward and defend the validity of the case based upon the Professor's failure. 

If you have questions about this case, please contact Amy K. Jensen in Hinshaw's San Francisco and Los Angeles offices.

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