In a unanimous decision dated June 3, 2019, the US Supreme Court resolved a split between federal appellate courts and provided clarity for employers defending against employment discrimination or retaliation claims in purported violation of Title VII of the Civil Rights Act of 1964 (Title VII). The key takeaway for employers is this: if an employer is sued for alleged Title VII violations and the plaintiff did not first file a charge with the Equal Employment Opportunity Commission (EEOC) alleging such Title VII violations, then the employer should raise as a defense, in its first responsive pleading (ie, in a motion to dismiss or answer), the plaintiff's failure to abide Title VII's charge-filing precondition to a lawsuit. Employers must raise this "potentially dispositive defense" to a Title VII lawsuit in a timely manner. Otherwise, the employer waives the defense and the plaintiff's Title VII lawsuit may proceed.
The background to the US Supreme Court's ruling is Title VII's requirement that a complainant, prior to commencing a lawsuit for alleged Title VII violations, must first file a charge with the EEOC and receive a "right to sue" notice. The issue before the Court was whether Title VII's EEOC charge-filing precondition is a "jurisdictional requirement" for a Title VII plaintiff to access the court system, or whether it is a "procedural prescription."
This distinction is critical. If a plaintiff fails to comply with a jurisdictional requirement, then a defendant, at any time during a lawsuit (even if it has been pending for years), may move to dismiss the case for lack of jurisdiction on the grounds that the Court does not have authority to hear the case. If, however, a plaintiff fails to comply with a procedural prescription and the defendant does not timely object, then the defendant waives its defense and the suit may continue.
The US Supreme Court, in Fort Bend County v. Davis, 587 U.S. ___ (2019), held that Title VII's charge-filing precondition to suit is a procedural, rather than jurisdictional, requirement that an employer waives by not timely raising as a defense. This ruling resolves a split between the Fourth Circuit Court of Appeals (which held that the EEOC charge-filing requirement is jurisdictional) and the Fifth Circuit Court of Appeals (which held that the charge-filing requirement is procedural).
Like many other states, Texas has a state human rights commission that transmits a complainant's charges to the EEOC. The plaintiff, Lois Davis, who worked for Fort Bend County, filed a charge in March 2011 with the Texas Workforce Commission alleging that, in violation of Title VII, her supervisor sexually harassed her and that she was retaliated against for reporting the sexual harassment.
While Ms. Davis's EEOC charge was pending, she was directed to report to work on a Sunday. Ms. Davis advised a supervisor that she had a church commitment that day and offered to find another employee to cover for her. The supervisor warned Ms. Davis that she would be fired if she failed to report to work that Sunday. When Ms. Davis went to church instead of work, Fort Bend fired her. In turn, Ms. Davis handwrote "religion" in the "Employment Harms or Actions" section on the Texas Workforce Commission's intake form that she had previously completed. Ms. Davis did not, however, revise her formal charge document to allege religious discrimination.
After receiving a "right to sue" notice from the government agency, Ms. Davis filed an action in federal court alleging both religious discrimination and retaliation for reporting sexual harassment. After years of litigation, and with only the religious discrimination claim remaining in the case, Fort Bend County asserted for the first time that the federal court lacked jurisdiction over that claim because Davis never filed a religious discrimination EEOC charge.
The Supreme Court rejected the employer's argument, holding that Title VII's charge-filing requirement is not jurisdictional. Accordingly, because Fort Bend County did not timely object to Ms. Davis's failure to file an EEOC charge with respect to the religious discrimination claim, the Supreme Court held that the employer waived the defense, and the claim was permitted to proceed in federal court.
In concluding that the charge-filing requirement is not jurisdictional, the high court reasoned that federal courts exercise jurisdiction over Title VII actions through "28 U.S.C. § 1331's grant of general federal-question jurisdiction and Title VII's own jurisdictional provision, 42 U.S.C. § 2000e-5(f)(3)." The Court noted that other Title VII provisions contain the charge-filing requirement, and that those provisions "do not speak to a court's authority or refer in any way to the jurisdiction of the district courts." Rather, those provisions address a party's procedural obligations. The Supreme Court ultimately held that "Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts."
Accordingly, if an employer faces a Title VII lawsuit, and the plaintiff did not first file an EEOC charge (or a charge with an associated state human rights agency), the employer should immediately raise the plaintiff's procedural failure in a motion to dismiss or in a pre-motion letter to the plaintiff's counsel, as well as an affirmative defense in the answer. For employers, this simple step may preserve a potentially dispositive defense that is otherwise waived if not timely asserted.
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