On June 3, 2019, the Supreme Court ruled unanimously in Fort Bend County, Texas v. Davis, No. 18-525, that while employees seeking to bring claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) have a mandatory obligation to file a charge with the Equal Employment Opportunity Commission (“EEOC”) before filing suit in court, that filing obligation is procedural, not jurisdictional. That decision has certainly made headlines over the last few days – but what does it mean for employers? Practically speaking, employers should heed the Court’s ruling moving forward and scrutinize EEOC charges, with the assistance of counsel, very early in litigation in order to ensure that failure-to-exhaust defenses are identified and timely raised.
First, a little background. As most employers are aware, Title VII prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin, as well as retaliation on the basis of engaging in activity protected by the statute. An employee who wants to bring a claim under Title VII is required to first file a charge with the EEOC – the federal agency responsible for enforcing most federal employment discrimination laws. This requirement was designed to encourage the early resolution of employment discrimination disputes, without litigation. While the EEOC cannot independently adjudicate an employee’s claims, it can choose to litigate such claims on behalf of the employee. The EEOC can also investigate or try to seek resolution between the employee and the employer through mediation or other means. Additionally, the EEOC can, and most often does, choose to take no action regarding a charge. At that point, the EEOC will issue a Notice of Right to Sue to the employee, after which he or she is considered to have “exhausted administrative remedies” and may file a lawsuit in court.
The issue the Supreme Court faced (and resolved) in Fort Bend was whether the requirement that an employee file a charge with the EEOC is jurisdictional – meaning the employer can raise it as a defense at any point in the litigation – or whether it is merely procedural, meaning that an employer waives it if it is not timely asserted. The Supreme Court agreed with the majority of circuit courts that have considered this issue and held that the charge-filing requirement is not jurisdictional but instead is a procedural, claim-processing rule “that must be timely raised to come into play.”
What does this mean for employers moving forward? The safest analysis is that an employee’s failure to include a particular claim in his or her EEOC charge (or failure to file a charge at all) does not automatically deprive the court of jurisdiction to hear the case. It does not remove the requirement to file with the EEOC – but if an employer wants to challenge an employee’s claims on the basis of failure to exhaust administrative remedies, the employer must raise the defense on a “timely” basis or risk waiving the defense. Unfortunately, the Court did not provide specific guidance regarding at what point a failure-to-exhaust argument is no longer “timely.” (Other than the fact that the employer in Fort Bend waited almost five years, which the Court found was clearly too long). So, prudent employers will want to consult with counsel early on regarding employment suits to determine whether allegations in the lawsuit that were not specifically identified in the charge can be challenged – and if so, you must be sure to raise this defense early in the litigation to avoid waiving that defense.