An employer who waits too long to object that a plaintiff failed to file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) before filing a lawsuit under Title VII may have waived that objection, the U.S. Supreme Court held on June 3, 2019. In Fort Bend County, Texas v. Davis, the court ruled that the requirement that a Title VII plaintiff file a charge with the EEOC or state agency raising the claims asserted in a lawsuit is not a jurisdictional requirement. Rather, said the court, the charge-filing requirement is a claim-processing rule that must be timely raised.
The decision highlights the need for employers to obtain and review the EEOC or corresponding state agency administrative file as soon as possible when a Title VII lawsuit is filed, and promptly assert an affirmative defense of failure to exhaust administrative remedies to avoid waiving the defense.
In Davis, Lois Davis filed a charge against her employer, Fort Bend County, Texas. Her charge alleged sexual harassment and retaliation for reporting the harassment. While her charge was pending, Fort Bend fired her for missing work to attend a church event. Davis handwrote “religion” on an EEOC intake questionnaire form but did not formally amend her charge to assert religious discrimination. The EEOC issued her a notice of right to sue.
Davis filed suit in the U.S. District Court for the Southern District of Texas in January 2012, alleging religious discrimination and retaliation for reporting sexual harassment. Fort Bend did not assert the defense of failure to exhaust administrative remedies until years later, when it moved to dismiss the religious discrimination claim for lack of jurisdiction. Notably, by the time Fort Bend asserted the defense, it had already successfully moved for summary judgment on the plaintiff’s retaliation claim and prevailed on appeal, including a petition to the U.S. Supreme Court. The District Court granted Fort Bend’s motion to dismiss the religious discrimination claim, finding that the charge-filing requirement was jurisdictional and that Davis’ failure to file a charge alleging religious discrimination deprived the court of jurisdiction over the claim.
The 5th U.S. Circuit Court of Appeals reversed that decision. The 5th Circuit held that the charge-filing requirement was a “prudential prerequisite” but not a jurisdictional bar to filing suit, and that Fort Bend waived the failure to exhaust administrative remedies defense by failing to raise it until after “an entire round of appeals all the way to the Supreme Court.”
The U.S. Supreme Court affirmed the 5th Circuit’s decision and held that the charge-filing requirement is a claim-processing rule, not a jurisdictional requirement. In doing so, the Supreme Court adopted the position embraced by a majority of federal appellate courts and rejected contrary decisions issued by the 4th and 10th Circuits. The Supreme Court reasoned that the term “jurisdictional” is reserved to describe the classes of cases that a court may entertain (subject matter jurisdiction), and persons over whom a court may assert authority (personal jurisdiction). Claim-processing rules, on the other hand, seek to promote the orderly progress of litigation by requiring parties to take certain procedural steps at certain times. While jurisdictional rules are inflexible, claim-processing rules may be waived if the party asserting the rule “waits too long” to raise the issue.
Critically, the Supreme Court itself did not define what is “too long” to wait to object to a plaintiff’s failure to file a charge. The 5th Circuit, however, opined that failure to exhaust administrative remedies is an affirmative defense that should be pled in a responsive pleading. Because Federal Rule of Civil Procedure 15 allows parties to amend their responsive pleadings with the court’s permission, the determination of how long is “too long” generally will be up to the discretion of the trial court and likely dependent on pleading deadlines set by the trial court in its case management orders.
In addition, the Supreme Court noted that it has yet to decide whether mandatory claims processing rules may be subject to equitable exceptions. In other words, could Fort Bend have somehow excused its failure to timely object to Davis’ failure to file a religious discrimination charge? The court did not answer this question in Davis, but other decisions provide some guidance. The court held in a 2016 decision, Menominee Indian Tribe of Wisconsin v. U.S., that equitable tolling of a statute of limitations requires a party to show (1) diligent pursuit of its rights and (2) extraordinary circumstances beyond its control preventing timely filing.
The takeaway for employers is simple: When a plaintiff files a Title VII lawsuit, immediately request the administrative record from the EEOC or state agency to determine whether the plaintiff properly asserted the Title VII claims in a charge. If not, assert as an affirmative defense the plaintiff’s failure to exhaust administrative remedies.
For more information on this topic, please contact the authors, your McGuireWoods contact, or a member of the firm’s labor and employment group.