The Supreme Court of the United States in Fort Bend County v. Davis recently held that employees may pursue Title VII discrimination cases in federal court even if they do not first file a charge with federal or state employment regulators – if an employer waits too long to raise an objection.
Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin, instructs an employee seeking to file a complaint to file a charge with the Equal Employment Opportunity Commission (EEOC) prior to commencing a Title VII action in court. The EEOC must then notify the employer, investigate the allegations, and bring a civil action against the employer in court, should it so choose. Irrespective of whether the EEOC decides to act on a charge, however, a complainant is entitled to a “right-to-sue” notice 180 days after the charge is filed, at which point the complainant may commence a civil action against his or her employer.
Justice Ruth Bader Ginsburg, writing for the unanimous Court, set forth that “Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the class of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction).” Instead, Justice Ginsburg described the charge-filing requirement as a “claim-processing rule,” citing the Court’s 2006 holding in Arbaugh v. Y&H Corp. that courts should treat litigation prerequisites as jurisdictional only if Congress “clearly states” that they are – which Title VII does not.
In Davis, Ms. Davis filed a charge against her employer, Fort Bend County, Texas, alleging sexual harassment and retaliation for reporting the harassment. While her EEOC charge was pending, Fort Bend terminated Davis’ employment because she failed to show up for work on a Sunday and attended a church event instead. Davis attempted to supplement her EEOC charge by handwriting “religion” on an intake questionnaire form, but she did not amend the formal charge document itself.
Upon receiving a right-to-sue letter, Davis commenced suit in the United States District Court for the Southern District of Texas, alleging discrimination on account of religion. After years of the litigation pending, Fort Bend asserted for the first time that the court lacked jurisdiction to adjudicate Davis’ claim because her EEOC charge did not state a religion-based discrimination claim. The district court agreed and granted Fort Bend’s motion to dismiss. See Davis v. Fort Bend County, 2016 WL 4479527 (S.D. Tex., Aug. 24, 2016). On appeal, the Fifth Circuit reversed, holding that the charge-filing requirement was not jurisdictional and was instead a “prudential prerequisite to suit, forfeited in Davis’ case because Fort Bend had waited too long to raise the objection,” waiving its failure-to-exhaust administrative remedies defense by bringing it far into the litigation. Davis v. Fort Bend County, 893 F.3d 300 (2018).
What Employers Need to Know
The Court’s opinion is significant in multiple respects. First, the opinion applies to all claims under Title VII, not just bias claims. Second, the Court’s opinion disrupts the general assumption that many sophisticated, seasoned employers and employment litigators may have held that a Title VII claimant must jump through the procedural hurdle of filing a charge before they can file suit.
Despite the initial appearance, the Court still seems to acknowledge that a timely objection by a defendant that a Title VII claimant failed to exhaust administrative remedies can be—and should be—fatal to a claim. Specifically, Justice Ginsburg notes that “recognizing the charge-filing requirement is nonjurisdictional gives plaintiffs scant incentive to skirt the instruction. Defendants, after all, have good reason promptly to raise an objection that may rid them of the lawsuit filed against them. A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.”
The Court’s opinion in Davis is a stern reminder that the onus is on employers—not the courts—to protect their interests when raising a failure-to-exhaust defense.
To read the opinion, please click here.