This post was authored by Megan Lewis.
A plaintiff who wants to file a lawsuit for a violation of Title VII of the Civil Rights Act of 1964 (a claim of discrimination based on race, religion, sex, etc.) must first “exhaust administrative remedies” by filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a similar state agency.
The U.S. Supreme Court recently held in Fort Bend County, Texas v. Davis, — S. Ct. —- (U.S. June 3, 2019) that an employee’s failure to exhaust administrative remedies is not a “jurisdictional” requirement that can be raised at any time during litigation, but rather a procedural requirement that can be waived if not raised in a timely manner.
Plaintiff Lois Davis worked in the information technology (IT) department for Fort Bend County, Texas. In 2010, Davis submitted an internal complaint alleging that Fort Bend’s IT Director had sexually harassed her. She later submitted an EEOC intake questionnaire, and ultimately filed a charge of discrimination with the EEOC regarding these allegations.
While this charge was pending, Davis was told to report to work on a Sunday. Davis alleges that, when she refused for religious reasons, her employment was terminated.
Davis then amended her EEOC intake questionnaire by writing “religion” in the “Employment Harms or Actions” section and checking the boxes for “discharge” and “reasonable accommodation” on the form. However, Davis never amended her actual EEOC charge to include religious discrimination.
Davis obtained a right-to-sue notice from the EEOC and subsequently filed a lawsuit against the County for discrimination on the basis of religion and retaliation for reporting sexual harassment.
The County Waits Years to Raise the Failure to Exhaust Defense
After the case had been pending (and actively litigated) for nearly five years, the County asserted for the first time that the district court lacked jurisdiction to hear Davis’ religious discrimination claim because she had not included religious discrimination in her EEOC charge (and therefore failed to exhaust administrative remedies). The district court agreed, but the Fifth Circuit Court of Appeals reversed, concluding that the charge-filing requirement was not jurisdictional and therefore could be waived if the employer waits too long to assert it, as the County did in this case.
The Supreme Court Rules the Defense Can Be Waived
The Supreme Court agreed with the Fifth Circuit. In a rare unanimous decision, the Supreme Court explained that a “rule requiring parties to take certain procedural steps in, or prior to, litigation, may be mandatory in the sense that a court must enforce the rule if timely raised,” but such requirements are “ordinarily forfeited if not timely asserted.” A jurisdictional requirement, on the other hand, is foundational to a court’s ability to adjudicate a claim and may be raised at any time during litigation. The Court held that the charge-filing requirement is the former.
The Takeaway for Employers
As a practical matter, an employee must still file a charge of discrimination before filing a lawsuit. If the employee fails to do so, the employer may be able to get the lawsuit dismissed on those grounds. However, employers are now on notice that, if they fail to raise this defense in a timely manner, a court may determine that the employer has waived the defense and allow the case to proceed even though the employee did not fulfill this “mandatory” requirement.