NO EEOC CHARGE, NO PROBLEM

On June 19, 2015, in Fowlkes v. Ironworkers, Local 40, 2d Cir., No 12-336 (6/19/15) the United States Court of Appeals, Second Circuit ruled that a transgendered man who failed to file a charge with the EEOC alleging sex discrimination and retaliation was not prohibited from proceeding with those claims against the Ironworkers.

Cole Fowlkes, who is biologically a woman but identifies as a man, initially filed charges of sex discrimination and retaliation with the EEOC against his Union in 2007. In his charge of discrimination, Fowlkes alleged his Union refused to refer him for jobs that he was qualified for on the basis of his transgendered identity. The EEOC issued a right to sue letter and Fowlkes filed an untimely complaint against the Union in the United States District Court for the Southern District of New York (“district court”) as a pro se plaintiff. As a result of his action being untimely, the district court dismissed his compliant.

Subsequently, in 2011, Fowlkes filed a second action with the district court alleging the Union violated his civil rights by subjecting him to harassment and retaliation by refusing to refer him for work based on his sex. The allegations in his 2011 complaint covered the period from 2005 through 2011. In addition to Fowlkes’ Title VII claims, he also brought claims of discrimination under the New York City Human Rights law. The district court again dismissed Fowlkes claims because it found he did not exhaust his administrative remedies by filing a charge with the EEOC or with any New York state agency, therefore, the district court ruled that it did not have jurisdiction over his Title VII claims or state and city law claims.

On appeal, the Second Circuit disagreed with the district court’s ruling and held that failure to exhaust administrative remedies under Title VII was not a jurisdictional defect. Instead, the timely filing of a charge with the EEOC is merely a prerequisite and Fowlkes’ claims could proceed if Fowlkes demonstrated an equitable defense to the exhaustion requirement, such as “futility” or that his claims were “reasonably related” to those that were present in a charge of discrimination. Applying this standard, the Court held that Fowlkes’ claims of sex discrimination could potentially be excused on the grounds that, in 2011, the EEOC had “taken a firm stand” against recognizing transgendered discrimination as sex discrimination. Thus, filing such a charge with the EEOC would have been futile in 2011.

Additionally, the Court held that Fowlkes’ more recent allegations of discrimination may be “reasonably related” to the discrimination about which he filed an earlier charge of discrimination with the EEOC. In Fowlkes’ latest complaint he alleged that the discrimination against him by the Union was precisely the same as he alleged in 2007 when he filed his charge with the EEOC. In addition, his complaint alleged the discrimination he suffered was retaliation for filing his previous lawsuit against his Union. As such, the Court held Fowlkes’ recent allegations may be “reasonably related” to his allegations filed with the EEOC.

Lastly, the Second Circuit held that it was persuaded Fowlkes stated a claim against the Union under the National Labor Relations Act (“NLRA”) for breach of duty of fair representation despite not citing the NLRA in his complaint. In his complaint, Fowlkes alleged the Union refused to refer work to him because of his transgendered status. The Court held such allegations, if true, would show the Union’s conduct was at least arbitrary, if not discriminatory and indicative of bad faith. As a result, the Court vacated the district court’s judgment dismissing Fowlkes’ action and remanded the case back to the district court.

This decision is an important one because it both provides plaintiffs with a defense against motions to dismiss based on administrative exhaustion and concerning claims by a person who identifies as transgender.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including those relating to Title VII, for almost sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisement.

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