Employer May Waive Right To “Failure To Exhaust” Defense If Not Raised Timely

The U.S. Supreme Court ruled in a unanimous decision on June 3, 2019, that federal courts may be able to hear discrimination claims under Title VII of the Civil Rights Act even if workers don’t bring them to the U.S. Equal Employment Opportunity Commission (EEOC) or an equivalent state agency.

In Fort Bend County V. Davis, Lois Davis filed a charge with the EEOC against her employer, Fort Bend County, for sexual harassment and retaliation.  While her EEOC charge was pending, Davis was fired from Fort Bend for attending a church event rather than work.  At such time, Davis attempted to supplement her EEOC charge by adding “religion” on the EEOC’s intake questionnaire but she did not formally amend her charge document.


Davis later filed a suit in Federal court under Title VII alleging religious discrimination, sexual harassment, and retaliation against Fort Bend County. Fort Bend appealed a Fifth Circuit ruling that reversed the dismissal of Davis’ religious discrimination claim.  Fort Bend asserted for the first time that the District Court lacked jurisdiction to adjudicate Davis’ case because her EEOC charge did not state religion-based discrimination. The District Court agreed and again dismissed her suit. Upon appeal, the Fifth Circuit reversed and held that Title VII charge-filing requirement is not jurisdictional, instead, the requirement is a prudential prerequisite to suit, forfeited by Fort Bend for waiting too long to raise an objection.


The high court agreed, describing Title VII’s charge-filing requirement as a “claim-processing rule” and held, “Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction).”


The ruling in Fort Bend County did not nullify Title VII’s requirement to file a charge with the EEOC or equivalent state agency, but it does make clear that an employer may waive its right to raise the defense of “failure to exhaust” administrative remedies if the defense is not raised timely in a case.


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