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Time Is of the Essence: U.S. Supreme Court Rules That Failure-To-Exhaust Argument in Employment Discrimination Suits Can Be Waived If Not Timely Made

Gavel and Books

On June 3, 2019, in Fort Bend County v. Davis,  the Supreme Court held that federal courts can hear discrimination claims under Title VII of the Civil Rights Act, even if the worker alleging discrimination did not bring those claims first to the U.S. Equal Employment Opportunity Commission (“EEOC”) or an equivalent state-level workplace discrimination body.

Lois Davis filed a charge of discrimination against her employer with the EEOC, alleging sexual harassment and retaliation for reporting the harassment. While the EEOC charge was pending, however, Davis was fired because she attended a church event rather than appear for work on a Sunday. Davis attempted to informally supplement her EEOC charge, but she did not amend the formal charge document. After Davis received the right-to-sue letter from the EEOC, she filed a lawsuit in federal district court, alleging discrimination on account of religion, as well as the retaliation claim for having reported sexual harassment. Ultimately, only the religion-based discrimination claim remained in the case, and the employer asserted for the first time (after five years of litigation) that the district court lacked jurisdiction over the case because Davis’ EEOC charge did not state a religion-based discrimination claim.

Writing for a unanimous court, Justice Ruth Bader Ginsburg sided with the worker, and reasoned that the charge requirement set forth in Title VII, while mandatory, is not jurisdictional.  Instead, the requirement is a “claim-processing rule.” Under a claim-processing rule, parties must take certain procedural steps during, or prior to litigation, in order to “promote the orderly process of litigation by requiring that the parties take certain procedural steps at certain specified times.” And an employer may succeed in enforcing that rule if only it raises the employee’s failure to follow the rule in a timely manner (unlike the employer in Fort Bend County, who waited five years into litigation to raise it). However, the employee’s failure to bring Title VII claims to a discrimination watchdog agency will not automatically divest a court of jurisdiction to hear the dispute.

Employers should take away two lessons from Fort Bend County. First, employers should be aware that the claims in an EEOC charge will not necessarily be the same claims that are asserted in the employee’s lawsuit, and that it is important to compare the original charge with the subsequent lawsuit. Second, in the event that an employee asserts a claim that was not properly raised before the EEOC, the employer should timely plead an affirmative defense that the employee failed to exhaust her administrative remedies. Employers who wait too long to raise a failure-to-exhaust argument risk waiving that argument all together.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.