U.S. Supreme Court Rules That an Employee’s First Step of Filing a Charge with the EEOC Is Subject to Waiver by the Employer, but Not Jurisdictional
June 11, 2019 by Margaret Mead
Last week the U.S. Supreme Court held that the administrative prerequisite of filing an EEOC Charge of Discrimination (“charge”) prior to commencing a Title VII lawsuit is just that—a procedural prerequisite, but not a jurisdictional bar. Fort Bend Cty., Texas v. Davis, No. 18-525, 2019 WL 2331306 (U.S. June 3, 2019).
Title VII of the Civil Rights Act of 1964 proscribes discrimination in employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a)(1). Any party who desires to pursue a Title VII discrimination claim must first file a charge with the EEOC prior to filing a lawsuit. The filing must occur within 180 days “after the alleged unlawful employment practice occurs.” 42 U.S.C. § 2000e–5(b), (e)(1). This period can be extended to 300 days in some states, such as Texas, with work-sharing agreements between the EEOC and the state employment agency.
Some courts previously held that filing a charge with the EEOC is jurisdictional, and the failure to timely do so is a complete bar to a lawsuit. See, e.g., Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). However, the Fifth Circuit, where Texas sits, has long held that, “Title VII’s administrative exhaustion requirement is not a jurisdictional requirement. Rather, it is only a precondition to filing suit, subject to waiver or estoppel defenses.” Stroy v. Gibson on behalf of Dep’t of Veterans Affairs, 896 F.3d 693, 698 (5th Cir. 2018). Justice Ginsberg’s opinion is consistent with the Fifth Circuit’s approach, but more importantly, previous Supreme Court authority. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113–14, 122 S. Ct. 2061, 2072, 153 L. Ed. 2d 106 (2002).
In the case at hand, Respondent Lois M. Davis filed a charge against her employer, Fort Bend County. Davis alleged sexual harassment and retaliation for reporting the alleged harassment. While her EEOC charge was pending, Fort Bend fired Davis because she attended church as opposed to reporting to work on Sunday. Davis attempted to supplement her EEOC charge by handwriting “religion” on a form called an “intake questionnaire,” but she did not amend the formal charge document. Upon receiving a right-to-sue letter, which dismisses the charge and opens the path to pursuing an aggrieved party’s claim in court, Davis commenced suit in Federal District Court, alleging discrimination on account of religion and retaliation for reporting sexual harassment.
After years of litigation, only the religion-based discrimination claim remained in the case. Fort Bend then asserted for the first time that the District Court lacked jurisdiction to adjudicate Davis’ case because her EEOC charge did not state a religion-based discrimination claim. The District Court for the Southern District of Texas agreed and granted Fort Bend’s motion to dismiss Davis’ suit. On appeal from the dismissal, the Fifth Circuit reversed. Title VII’s charge-filing requirement, the Court of Appeals held, is not jurisdictional; instead, the requirement is a prudential prerequisite to suit, forfeited by the employer in Davis’ case because the employer simply waited too long to raise the objection.
Need to Know for Employers: An employee may pursue a Title VII lawsuit despite failing to first file a required charge of discrimination with the EEOC. Such a scenario occurs when the employer fails to object to the employee’s failure to exhaust her administrative remedies and thereby waives its right to this powerful defense. As a result, an employer should immediately and carefully compare any newly-filed Title VII federal complaint with the underlying charge to ensure it timely objects to the employee’s failure to raise Title VII issues at the charge stage.