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In dismissing a bartender’s sexual harassment suit against the restaurant in which she worked, the 5th U.S. Circuit Court of Appeals reaffirmed its rule that the federal courts have no jurisdiction over such cases if the defendant entity employed fewer than 15 people. The Aug. 2 decision is Arbaugh v. Y&H Corp., No. 03-30365. Five other circuits-the 4th, 6th, 9th, 10th and 11th-have also ruled that 42 U.S.C. 2000e(b), by defining “employer” as an entity having 15 or more employees, sets out a threshold for federal jurisdiction in Title VII cases. The 2d, 7th and Federal circuits have ruled instead that a Title VII of the 1964 Civil Rights Act complainant must be able to prove that her employer meets the statutory 15-employee minimum as part of her case-in-chief, but need not do so as a threshold jurisdictional matter. What reason? In its opinion, the 5th Circuit panel noted that “[bartender Jenifer] Arbaugh argues that while the Fifth Circuit has concluded [the 15-employee threshold] determines subject matter jurisdiction, this court’s rulings do not provide an explanation supporting its conclusions.” The panel seemed almost to concede that point, by dwelling at length on the reasoning of the 2d and 7th circuits, but supplying no explanation of the 5th Circuit’s position. Ultimately, the panel threw out Arbaugh’s suit on the ground that its hands were tied by earlier 5th Circuit panel rulings dating back to 1980. In fact, there seems to be a dearth of explanation among all of the courts that treat the 15-employee threshold as jurisdictional. Opinions by the 4th, 6th, 9th and 11th circuits simply assume that it is so without explanation. In a 1980 decision, Owens v. Rush, 636 F.2d 283, the 10th Circuit supported the jurisdictional reading by pointing to decisions of the 5th and 7th circuits, the latter of which is now in the other camp. The 2d Circuit’s 2000 decision, Da Silva v. Kinsho Int’l Corp., 229 F.3d 358, gives the fullest discussion of the issue. The court illustrated just how slippery the distinction between a jurisdictional threshold and a requirement that goes to the merits can be. Starting with “the type of controversy involved in the action” offers little help, the court concluded. Title VII could plausibly be said to give jurisdiction over all “colorable claims of employment discrimination” (in which case the 15-employee requirement would go to the merits) or over “all cases of employment discrimination against employers covered by federal law” (in which case the requirement would be a jurisdictional threshold issue), the court said. The 2d Circuit ultimately came down in favor of the nonjurisdictional reading partly because of the wording of the statute, but also by looking at the consequences of each reading. The court noted that where subject-matter jurisdiction is lacking, “all actions of a federal court are void.” It offered the hypothetical of a federal trial court wrongly finding federal jurisdiction at the start of a suit, allowing the plaintiff to bring related state-law claims, and then conducting a protracted trial on both federal and state matters, only to have its jurisdictional ruling reversed on appeal. None of the trial court’s work, not even on state-law claims, could be salvaged in such a case. That counseled in favor of keeping jurisdictional elements to a minimum, the 2d Circuit concluded. Treating the 15-employee requirement would also have the irksome consequence of requiring both trial and appellate courts to review the evidence on that issue independently, the court said. Young’s e-mail is [email protected].

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