On Monday,
the U.S. Supreme Court unanimously held that Title VII’s requirement that
claimants exhaust administrative remedies by filing a charge with the Equal Employment
Opportunity Commission (EEOC) before suing is not jurisdictional. The decision,
issued in Fort Bend County v. Davis, means that an employer that
fails to timely assert a “failure to exhaust” affirmative defense to a lawsuit
waives the ability to later seek dismissal of the suit on this ground. As a
result of the Court’s ruling, employers need to be vigilant in timely asserting
any failure to exhaust defense at the outset of litigation to preserve the
defense.
Title VII of
the Civil Rights Act of 1964 prohibits employment discrimination by covered
employers on the basis of race, color, national origin, religion, and sex. The
plain language of Title VII sets forth an administrative process that a
claimant must follow before filing suit. This process requires that a claimant begin
by filing a Title VII charge of discrimination with the EEOC. Once a charge is filed, the claimant may leave
the charge pending with the EEOC through the conclusion of the EEOC’s process
or, after 180 days, seek a right to sue notice to proceed to court. Under Title
VII, a plaintiff’s failure to appropriately complete the EEOC charge process is
grounds to dismiss their case.
In Davis, plaintiff Lois Davis filed an
EEOC charge alleging sexual harassment and retaliation by her former employer,
Fort Bend County. Davis’s EEOC charge did not assert religious discrimination. Davis
later brought a lawsuit in federal court that included a claim of religious
discrimination, as well as the claims asserted in her earlier EEOC charge. Fort
Bend moved to dismiss Davis’s claims, which the lower court did. The Fifth
Circuit Court of Appels reversed the lower court’s dismissal of Davis’s religious
discrimination claim, remanding this claim back to the lower court. At that
point, for the first time in the litigation, Fort Bend asserted that the
district court lacked jurisdiction to consider the religious discrimination
claim based on Davis having failed to exhaust her obligation to file a charge
on that claim with the EEOC. The District Court agreed, dismissing the claim. On
appeal, the Fifth Circuit held that Fort Bend had waived the failure to exhaust
defense by not timely asserting it earlier in the case.
The Supreme
Court accepted review. Before the Court, Fort Bend argued that Title VII’s
exhaustion requirement is jurisdictional — that is, a failure to exhaust
defense cannot be waived and federal courts lack the authority to hear
unexhausted Title VII claims without exception. The Supreme Court rejected this
argument, ruling that Title VII does not state that the exhaustion requirement
is jurisdictional and, as such, courts must treat it as non-jurisdictional. The
Supreme Court also stated, though, that the exhaustion requirement cannot be
ignored, and an employee risks having a lawsuit claim dismissed for a failure
to exhaust if an employer timely asserts a failure to exhaust affirmative
defense.
As noted
above, the Court’s ruling means that employers with a failure to exhaust
defense must timely assert that defense or risk losing it.
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