In June, the U.S. Supreme Court unanimously ruled in Fort Bend v. Davis that Title VII’s administrative exhaustion requirement is not jurisdictional and employers may waive their right to challenge discrimination claims based on a worker’s failure to exhaust administrative remedies if such challenges are not raised promptly.
In 2011, Lois Davis, an employee for Fort Bend County in Texas, completed an intake questionnaire with the Equal Employment Opportunity Commission (EEOC) claiming she was retaliated against for complaining about sexual harassment. While her claim was pending, Ms. Davis was fired after failing to appear for work on a Sunday that conflicted with her church attendance. Ms. Davis then attempted to add religion as a basis for the discrimination claim to the intake questionnaire, but failed to amend her formal complaint.
Shortly thereafter, the EEOC issued Ms. Davis a right to sue letter. She proceeded to file a lawsuit against Fort Bend County in U.S. District Court claiming religious discrimination as well as retaliation for reporting sexual harassment. The District Court granted the county’s motion for summary judgment on all of Ms. Davis claims, even though the county did not assert a failure to exhaust defense. Ms. Davis appealed and the U.S. Court of Appeals for the Fifth Circuit reversed and remanded the religious discrimination claim to the District Court.
On remand, the county asserted the failure to exhaust defense for the first time and moved to dismiss for lack of jurisdiction. The District Court granted the motion to dismiss on that basis, however, the Fifth Circuit reversed, holding that the requirement to file an EEOC charge is non-jurisdictional and that a failure to exhaust defense could be forfeited if not raised in a timely way.
Resolving a circuit split, the Supreme Court agreed with the Fifth Circuit, holding that Title VII’s charge filing requirement is a procedural obligation, albeit a mandatory one, that can be the basis for a defense. The high court said that the defense can be waived if not raised in a timely manner, however.
The effect of the high court’s ruling is that employers must assert objections to Title VII claims raised in a court complaint that were not asserted in an initial EEOC or state agency charge promptly; failure to do so could waive the failure to exhaust administrative remedies defense.
Although the charge filing requirement remains in effect, and the court did not define what promptly means, the defense should be asserted in the employer’s answer to the complaint or in a motion to dismiss. In any event, employers who have questions this ruling should consult the experienced employment law attorneys at Lipsky Lowe, LLP.