The Supreme Court has granted certiorari in Arbaugh v. Y & H Corp., 380 F.3d 219 (5th Cir. 2004). The case involves the important procedural question of whether or not the 15-employee threshold in a Title VII case is jurisdictional or is just an element of proof. Jenifer Arbaugh filed suit against Y&H Corporation ("Y&H"), asserting claims under Title VII. A jury found in favor of Arbaugh. Defendant filed a motion to dismiss, contending that Y&H did not qualify as an "employer" under Title VII because it did not employ 15 or more employees. The district court ordered both parties to conduct post-trial discovery on the issue. The district court later converted the motion to dismiss to a motion for summary judgment and entered an order vacating and reversing Arbaugh's jury verdict and judgment based upon the determination that the court did not have subject matter jurisdiction.
The 5th Circuit noted that there is a clear split in the circuits on this issue, with the 4th, 6th, 9th, 10th and 11th circuits also holding the issue is a jurisdictional one.