On June 3, 2019, the U.S. Supreme Court held in Fort Bend County v. Davis that the requirement to file a charge of discrimination with the EEOC (or relevant state or local agency) is not a jurisdictional prescription to a lawsuit's claim under Title VII. Rather, it is a non-jurisdictional mandatory claim-processing rule that is a precondition for relief. The practical result of this decision is that employers must now timely raise any defense of failure to exhaust administrative remedies, or face the risk that their defense will be waived.
Title VII requires that a potential plaintiff must first file a charge of discrimination with the EEOC or applicable state or local agency. The EEOC then notifies the employer and investigates the claims. If the EEOC determines that there is no reasonable cause to believe the charge, the agency issues a right-to-sue letter, after which the plaintiff can file suit against the employer.
An employee of Fort Bend County filed an EEOC charge alleging sexual harassment and retaliation against her employer. She then attempted to supplement the charge by handwriting "religion" on the EEOC intake questionnaire, but did not amend the formal charge itself. After receiving a right-to-sue letter from the EEOC, the employee filed suit, alleging religion-based discrimination, and retaliation for reporting sexual harassment.
The case progressed through years of litigation and appeals, including the district court's grant of summary judgment for the County, which the Court of Appeals for the Fifth Circuit affirmed as to the retaliation claim, and reversed as to the religious discrimination claim.
When only the claim for religion-based discrimination remained, the County moved to dismiss the employee's complaint. The County argued that she failed to exhaust her administrative remedies on her religious discrimination claim by not including the claim in her formal EEOC charge. The district court agreed and dismissed the case, holding that administrative exhaustion is a jurisdictional bar to suit, meaning that the defense can be raised at any point. The Fifth Circuit reversed the decision, however, holding that the charge-filing requirement in question is not jurisdictional, and is instead a prudential prerequisite to suit (meaning that failure to fulfil the requirement is an affirmative defense that should be pleaded), which the County waived after waiting too long to raise the defense. The Supreme Court affirmed.
Supreme Court's Decision
In a unanimous opinion authored by Justice Ruth Bader Ginsberg, the Supreme Court decided the following question of law, the answer over which lower courts disagreed: is Title VII's requirement to exhaust administrative remedies a jurisdictional prerequisite to filing suit? The Court answered the question in the negative.
First, the Court considered the distinction between jurisdictional requirements (which can be raised by a defendant at any point in a proceeding) and prudential prerequisites to bringing suit (which must be timely raised by a defendant, or waived and lost). The Court determined that the ball is left in Congress' court to instruct litigants as to whether a requirement is jurisdictional. Where Congress does not treat a restriction as jurisdictional, it should not be considered as such. The Court then drew comparisons to several other prudential prerequisites, including the Copyright Act's requirement that parties register their copyrights before filing suit, and Title VII's own limitation of covered employers to only those with 15 or more employees, in contrast to the amount-in-controversy requirement of federal-court diversity jurisdiction. The Court then considered the language of Title VII, observing that the jurisdictional provisions and the charge-filing requirements of the statute are laid out in separate provisions. Thus, as Title VII does not clearly state otherwise, the Court held that the requirement to exhaust administrative remedies is not jurisdictional, but rather a prudential prerequisite to suit—albeit a mandatory claim-processing one.
The Court then held that because of its delay in raising the issue, the County waived any objection to the employee's failure to exhaust administrative remedies. However, the Court did not explicitly state or imply a deadline by which the defense must be raised, instead holding that where it is not raised until years into the litigation, after an entire round of appeals, the opportunity has been forfeited.
How Does This Decision Affect Employers?
As a result of this decision, employers will no longer be able to argue a defense of failure to exhaust administrative remedies at any point throughout litigation, and instead must do so in a timely manner. The decision may have little practical impact on most Title VII litigation. The Supreme Court did not remove the requirement to file an EEOC charge. Nor, if timely raised, does this decision prevent employers from seeking a dismissal of Title VII claims based on a plaintiff's failure to exhaust administrative remedies under most circumstances. Indeed, in all but the Fourth, Tenth, and Eleventh Circuits, courts have previously decided cases consistent with the Supreme Court's decision. However, in a footnote, the Court also reminded that it has reserved for future consideration whether mandatory claims-processing rules may ever be subject to equitable exceptions.
We expect lower courts in the near future to interpret this decision and give guidance as to when exactly a defense of failure to exhaust administrative remedies will be considered forfeited. Regardless, employers should continue to raise any potentially dispositive defenses in a timely manner, as failure to raise these objections early may be considered a waiver of any such argument.
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