Can Title VII plaintiffs bypass the EEOC?

What the Supreme Court's decision in Fort Bend really means.

As you may have heard, the U.S. Supreme Court has allowed a plaintiff to proceed with a Title VII religious discrimination lawsuit even though she didn't file a religious discrimination charge first.

Darn. So much for my "Keep Calm. You still have your 'Failure to Exhaust Administrative Remedies' defense" poster.


But employers shouldn't panic. "Failure to exhaust administrative remedies" is still a perfectly good defense to a discrimination lawsuit. It's just not jurisdictional.

Fort Bend County v. Davis

In 2010, Lois Davis accused her supervisor of sexual harassment, and he quit while the investigation was pending, but her new supervisor was allegedly a buddy of the alleged harasser. As one might expect, the new boss was allegedly not a fan of Ms. Davis. In early 2011, Ms. Davis filed a charge against her employer, Fort Bend County, Texas, claiming that she was sexually harassed and retaliated against for reporting the harassment. While her charge was still with the Equal Employment Opportunity Commission, she was directed to work on a Sunday. She asked to be excused for a "church function," and her boss would not excuse her. She did not report to work, and she was fired. 

She never updated her EEOC charge to include religious discrimination, although she did add a handwritten note to her EEOC intake questionnaire.

In January 2012, Ms. Davis sued the county for retaliation for complaining about sexual harassment, intentional infliction of emotional distress, and religious discrimination. The county won summary judgment initially (in 2013), but the U.S. Court of Appeals for the Fifth Circuit found that her religious discrimination claim could go to trial (in 2014). The county asked the U.S. Supreme Court to review the Fifth Circuit decision, but the Supreme Court said no in 2015.

"We're exhausted already."


During the roughly three years that Phase 1 of the lawsuit was pending, the county never asserted as a defense Ms. Davis's failure to file a religious discrimination charge.

The county's belated defense

After the case was sent back to federal district court in Texas in 2015, the county filed a motion to dismiss the lawsuit, pointing out for the first time that Ms. Davis had not filed an EEOC charge alleging religious discrimination. The district court granted the motion, saying that the requirement to file an EEOC charge before filing a Title VII lawsuit was "jurisdictional."

If a requirement is "jurisdictional," that is a very big deal. It means that the court has no authority to adjudicate the case. Whatsoever. The court doesn't have to wait for a defendant to point it out, either. It can decide on its own that it has no jurisdiction, and if so, it must dismiss the case, no ifs, ands, or buts, and no matter how far along the litigation was at the time.

Ms. Davis appealed again, and the Fifth Circuit reversed, saying that the charge-filing requirement is not "jurisdictional." That means the defendant has to raise the defense of failure to exhaust administrative remedies, and it must do so in a timely manner, or the defense will be forfeited and the case will proceed.

The county asked the Supreme Court to review this Fifth Circuit decision (your tax dollars at work!), and the Supreme Court agreed to do so.

But Fort Bend County, Texas, didn't get the answer it wanted.

"Sam, Neil, Brett, John, Clarence and I are six peas in a pod, baby!"


All nine of the Supreme Court justices agreed with the Fifth Circuit that the EEOC charge-filing requirement is not jurisdictional. According to the Court, in an opinion by Justice Ruth Bader Ginsburg, the filing requirement is a mere "claim-processing rule." As Justice Ginsburg said,

A claim-processing rule may be "mandatory" in the sense that a court must enforce the rule if a party "properly raise[s]" it. . . . But an objection based on a mandatory claim-processing rule may be forfeited "if the party asserting the rule waits too long to raise the point."


But even though a charge is not a "jurisdictional" requirement, it's still a requirement. Justice Ginsburg concluded,

[R]ecognizing that 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.


So, all is well, employers -- you still have the defense. Just don't forget to assert it!

Image Credits: All from flickr, Creative Commons license. "Keep Calm" poster by Iain Farrell, tired group by Joe Goldberg, RBG by DonkeyHotey.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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