In a recent Supreme Court decision, the Court held that Title VII’s requirement that a covered “employer” meet a minimum threshold number of employees is not “jurisdictional” but is part of the requisite elements of a claim for relief. Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 163 L.Ed.2d 1097, 74 USLW 4138 (2006). The effect of holding that the threshold is not “jurisdictional” was to abrogate previous Fifth Circuit jurisprudence treating Title VII’s employee-numerosity requirements as a matter of federal court subject-matter jurisdiction that is not subject to waiver or estoppel.

In a post-Arbaugh decision, the import of the jurisdictional/non-jurisdictional distinction is again illustrated. In Minard v. ITC Deltacom Comm., 04-30230 (5th Cir. Apr. 18, 2006), the Fifth Circuit held that the FMLA’s employee- numerosity requirement for “eligible employee ” is not an element of subject matter jurisdiction, but is an element of the claim for relief under the FMLA that may be subject to waiver or equitable estoppel. Under the FMLA, an “eligible employee” does not include those who are employed at a worksite having less than 50 employees where the total number or employees within 75 miles of the worksite is less than 50. In Minard, the plaintiff requested and was granted FMLA leave for surgery, but when she was scheduled to return to work, she was terminated. The employer contended that there was no FMLA violation because it discovered while the employee was on leave that the plaintiff was not an “eligible employee” under the FMLA due to the worksite employee-numerosity threshold.   Because the “eligible employee” threshold was not jurisdictional, the plaintiff was able to urge that her employer was bound by its initial representations to her that she was eligible for FMLA. Finding that the plaintiff could present such an argument, the Fifth Circuit did not rule on whether the elements of equitable estoppel were met, finding a material issue of fact and remanding for further proceedings.