The U.S. Supreme Court recently held that the requirement to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) is mandatory, but not jurisdictional.  Fort Bend County v. Davis (June 3, 2019).  In other words, an aggrieved employee is required to file a charge with the EEOC prior to filing a complaint with the court, but if the employee fails to do so, the employer must timely raise that failure with the court to get the case dismissed.  Absent a timely objection from the employer, the defense is forfeited.

Background

Lois Davis filed an EEOC charge against her employer, Fort Bend County, alleging sexual harassment and retaliation.  Thereafter, Fort Bend fired Davis because she failed to show up for work, choosing to attend a church event instead.  Davis handwrote “religion” on her intake questionnaire, but she never formally amended her charge document to include an allegation of religious discrimination.  After the EEOC issued her a right-to-sue letter, Davis filed a lawsuit alleging discrimination based on religion and retaliation for reporting sexual harassment.

After approximately four years of litigation, Fort Bend argued for the first time that the court lacked jurisdiction to adjudicate the case because Davis did not state a religious discrimination claim on the EEOC charge, and thus, failed to exhaust her administrative remedies.  The court agreed and dismissed the lawsuit.

Supreme Court

The case made its way to the U.S. Supreme Court.  The Court discussed the distinction between jurisdictional requirements and nonjurisdictional claim-processing rules.  Jurisdictional requirements must be met or a court does not have power to hear the case.  A jurisdictional defense can be raised at any point in the lawsuit to get the case dismissed.  On the other hand, nonjurisdictional claim-processing rules require certain procedural steps at certain times in order to promote the orderly process of litigation.  These rules can be mandatory, but an objection based on such a rule may be forfeited if not timely raised.

The Supreme Court concluded that Title VII’s charge-filing requirement is a mandatory, but nonjurisdictional claim-processing rule.  Because Fort Bend did not timely raise its objection to Davis’s failure to exhaust her administrative remedies, the objection was waived.

Takeaway

The defense of failure to exhaust administrative remedies must be timely raised or it will be waived.  Employers must be sure to raise this and any other similarly nonjurisdictional defenses in a timely manner or risk forfeiture.