Most federal laws prohibiting discrimination and retaliation, such as Title VII of the Civil Rights Act of 1964 (“Title VII”), require plaintiffs to first file an administrative charge alleging discrimination or retaliation with the Equal Employment Opportunity Commission (“EEOC”) or the state-agency equivalent before they may file a lawsuit alleging such discrimination or retaliation. If the plaintiff has not exhausted those administrative remedies, the lawsuit may be subject to dismissal.
The United States Supreme Court, however, recently issued a unanimous opinion holding that even if an employment discrimination plaintiff does not exhaust his or her administrative remedies, employers can still be forced to defend the plaintiff’s Title VII claims. More specifically, the Supreme Court held that the charge-filing precondition to filing suit under Title VII is not a “jurisdictional” requirement, but rather a mandatory claim-processing rule that is subject to forfeiture if not timely raised. In other words, the Supreme Court’s decision means that an employer can lose the right to get a Title VII lawsuit dismissed based on a plaintiff’s failure to exhaust his or her claim with an agency if the employer fails to timely assert the defense.
In Fort Bend County, Texas v. Davis, the plaintiff, Lois Davis, informed her employer’s human resources department that a manager was sexually harassing her. After the employer, Fort Bend County, Texas (the “County”), conducted an investigation, the manager resigned. Davis then alleged that her supervisor, who was friendly with that manager, began retaliating against her after the resignation. While still employed with the County, Davis filed an intake questionnaire and charge with the Texas Workforce Commission for alleged sexual harassment and retaliation (the “Charge”). While the Charge was pending, Davis’ employment was terminated after she allegedly failed to report to work on a Sunday due to a church commitment. Instead of amending her original Charge, Davis tried to add her religious discrimination claim through a handwritten update to her intake questionnaire. She also checked the boxes for “discharge” and “reasonable accommodation.”
Soon after, Davis was notified of her right to sue the County in federal district court and did so in January 2012, alleging discrimination on the basis of religion and retaliation for reporting sexual harassment. The County moved for summary judgment, which was affirmed on appeal as to the retaliation claim but was reversed by the Fifth Circuit Court of Appeals as to the religion-based discrimination claim. On remand to the district court, and for the first time in the years-old litigation, the County moved to dismiss Davis’ complaint on the basis that the court lacked jurisdiction because she failed to state a religion-based discrimination claim on her Charge. The district court agreed with the County, holding that the charge requirement was “jurisdictional” and could be raised at any time in the litigation. The Fifth Circuit reversed, holding that the charge-filing requirement was not jurisdictional, but rather a mandatory claim-processing rule, and that the County had forfeited its right to rely on the charge-filing requirement as grounds for dismissal because it raised the issue too late in the litigation.
The Supreme Court unanimously affirmed. The Court stated, “[w]e hold that Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction).” Rather, the administrative exhaustion or charge-filing requirement is a mandatory claim-processing rule that can be waived if the party invoking it waits too long.
The Bottom Line for Employers
The Supreme Court’s ruling did not invalidate Title VII’s requirement that employees must file administrative charges with the EEOC or equivalent state agencies before going to court. Rather, the Court made it clear that employers can lose the defense of failure to exhaust administrative remedies if they wait too long to assert it during litigation. Accordingly, upon receiving a Title VII complaint, employers and their counsel should review the administrative history of the case to determine if the claim has been exhausted before an agency. If it has not, employers should be sure to quickly address the lack of exhausted administrative remedies in an answer (through an affirmative defense of failure to exhaust administrative remedies) and/or a dispositive motion. Otherwise, the employer jeopardizes waiving an important possible defense to a Title VII claim.