No Timely Charge? Raise A Timely Defense (Or Else): Supreme Court Says Title VII’s Charge-Filing Requirement Is Not Jurisdictional - Articles

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Posted by: Wendy Miller on Aug 9, 2019

In a June 3, 2019, decision, Fort Bend County, Texas v. Davis, 587 U.S. __ (2019), the U.S. Supreme Court held a failure to comply with Title VII’s requirement that plaintiffs file a pre-suit administrative charge of discrimination with the Equal Opportunity Employment Commission is not a “jurisdictional” bar to a lawsuit in court.  This means that employers defending Title VII claims should be careful not to wait too long to raise a “failure to exhaust” defense.  If the employer does wait too long to raise this defense, a Title VII plaintiff can argue the defense was waived, and the court is allowed to decide the merits of his or her claim even if the plaintiff did not file a timely charge of discrimination with the EEOC before filing his or her lawsuit. 

In Fort Bend County, Texas v. Davis, the plaintiff, Lois Davis, worked in information technology for Fort Bend County.  She complained to the human resources department that she believed the director of information technology was sexually harassing her.  Following an investigation, the director resigned.  Davis alleged her supervisor then began retaliating against her for making the sexual harassment complaint.  Davis contacted the EEOC and her state workforce commission.  She submitted a formal Charge of Discrimination.  While her charge was pending, Davis was told to report to work on an upcoming Sunday.  She told her supervisor she had a commitment at church that Sunday and offered to arrange for another employee to replace her at work.  Her supervisor responded if Davis did not show up for the Sunday work, she would be subject to termination.  Davis went to church, not work, that Sunday and was terminated. 

After her termination, Davis tried to update her allegations in the EEOC proceedings.  She handwrote “religion” and added checkmarks in the boxes for “discharge” and “reasonable accommodation” on her intake questionnaire.  She did not, however, make any change to her formal Charge document.  A few months later, she received a Notice of Right to Sue and then filed a civil action.  Her suit alleged discrimination on account of religion and retaliation for reporting sexual harassment in violation of Title VII (among other claims).

Before filing a Title VII action in court, federal law requires plaintiffs to first exhaust an important administrative prerequisite.  Plaintiffs must first timely file a charge with the EEOC and obtain a “right to sue” notice from the EEOC.  In Davis, the parties disputed whether Davis had fulfilled that administrative prerequisite with respect to her religious discrimination claim—i.e. by adding “religion” to her intake questionnaire but not amending her formal Charge.  Fort Bend, however, did not raise this issue of administrative exhaustion in its initial Answer to the Complaint.  Davis’ Complaint alleged that “all conditions precedent” to suit had been met, but For Bend’s answer only stated that Fort Bend did not have “sufficient knowledge or information, after reasonable inquiry, to admit or deny” the claim of jurisdiction.  It also did not raise the issue in its original motion for summary judgment, on a subsequent appeal to the Fifth Circuit Court of Appeals, in a subsequent petition for rehearing en banc or in its petition for certiorari to the Supreme Court that followed. 

Five years into the litigation—after an entire round of appeals all the way to the Supreme Court—Fort Bend filed a motion to dismiss and argued for the first time that the district court lacked jurisdiction to adjudicate Davis’ religious discrimination claim because she had not stated such a claim in her EEOC charge. 

The case gave the Supreme Court the opportunity to resolve a conflict among the courts of appeal over whether Title VII’s charge-filing requirement is jurisdiction.  Challenges to subject matter jurisdiction may be raised by the defendant “at any point in the litigation,” and courts must consider such a challenge sua sponte.  Thus, if Title VII’s charge-filing requirement acts as a limit on the court’s subject matter jurisdiction, Fort Bend could raise the challenge at any point—no matter how “tardy” it was in doing so.   If, on the other hand, the rule was instead a mandatory claim-processing rule, it was not jurisdictional and could be forfeited if the party asserting the rule waits too long to raise the point.  The Supreme Court decided it fell in the latter category, explaining that Title VII’s charge-filing provisions speak to a party’s procedural obligations, not to a court’s authority.  By waiting five years and an entire round of appeals all the way to the Supreme Court before arguing Davis failed to exhaust, Forts Bend forfeited its opportunity to assert the defense.  The Court left for another day the question of whether mandatory claim-processing rules, like Title VII’s charge-filing requirement, may ever be subject to equitable exceptions.

This does not mean that filing a charge should be considered optional or the requirement should be ignored.  A rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.  A prompt objection to a plaintiff’s failure to first channel his or her claims to the EEOC may promptly rid a defendant of a lawsuit filed against it.  While the case highlights why Title VII defendants should be careful to promptly plead and raise an available failure to exhaust defense, it also contains a warning to Title VII plaintiffs: “A Title VII complainant would be foolhardy consciously to take the risk that the employer would forego a potentially dispositive defense.”  Fort Bend County, Texas v. Davis serves as an important reminder for both plaintiffs and defendants about the importance of Title VII’s administrative prerequisites in Title VII litigation.  Failure to exhaust mandatory administrative prerequisites may give a defendant a dispositive defense, but only if the defendant does not forego that defense by waiting too long to raise it.   


–– Wendy Miller is a shareholder at Ogletree Deakins in Nashville, where she is a member of two practice groups, Litigation, Class Action, Employment Law, and Wage and Hour. Wendy received her J.D. from Vanderbilt University, where she was also awarded a Certificate of Specialization in Law & Business. She may be reached at 615-687-2217 or wendy.miller@ogletree.com.