Recent SCOTUS Ruling Reminds Employers to Assert Failure to Exhaust Defense Early in Litigation
On June 3, 2019, the United States Supreme Court issued a unanimous 9-0 Opinion in Fort Bend County v. Davis that a complainant who fails to file a charge with the EEOC before filing a lawsuit against an employer does not create a jurisdictional defense for the defendants.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). The Act instructs a complainant, before filing a Title VII lawsuit, to file a charge with the Equal Employment Opportunity Commission (EEOC). After receiving a charge from a complainant, the EEOC investigates the underlying charge by conducting interviews and requesting relevant documents from the involved parties. If the EEOC believes unlawful employment practices were taking place, they will attempt to eliminate those practices through an informal process called conciliation. Depending on the nature of the violations by the employer, the EEOC also has the ability to file a civil lawsuit on behalf of the complainant in court. The EEOC does not have the authority, however, to actually adjudicate employment discrimination complaints, as that power is still left to the courts. If the EEOC elects not to sue on behalf of the complainant or otherwise take action, the complainant will receive from the EEOC a right-to-sue letter 180 days after the charge is filed. Once the complainant receives the right-to-sue letter, the complainant can file a civil lawsuit against the employer over the alleged improper employment practices.
In Davis, the complainant filed a charge with the EEOC alleging the employer retaliated against her for alleging sexual harassment in the work place. She eventually received a right-to-sue letter from the EEOC. Upon receiving her right-to-sue letter, the complainant filed suit against her employer. However, in the lawsuit she filed, she added a new charge regarding religious based discrimination that had not been properly stated in the charge she filed with the EEOC. The employer asserted that the court did not have jurisdiction to hear her claim regarding religious discrimination, as the claimant violated the requirement that she first bring a charge with the EEOC over that claim.
United States Circuit Courts of Appeal had been split on whether a complainant failing to first file a charge with the EEOC prohibited courts from having jurisdiction to hear a lawsuit filed by said complainant.
Holding: The Supreme Court held in Davis that the failure of a complainant to file a charge with the EEOC before filing a civil action in court did not serve as a jurisdictional bar on the court to hear the underlying matter. With that said, a complainant failing to file a charge with the EEOC before filing suit does still provide the employer with a procedural defense they could assert to the lawsuit if timely filed.
Practice Tip: Davis makes clear that filing a charge with the EEOC is a still a prerequisite for an employee before filing a civil lawsuit over the alleged violation of Title VII. With that said, such a defense is merely procedural in nature, meaning the employer must timely assert it for it to potentially apply. If the employer fails to timely assert the aforementioned defense, such defense can be waived. Jurisdictional defenses can be asserted at any point in time, so employers would have benefited from the Supreme Court finding that courts did not have jurisdiction to hear Title VII complaints if the employee failed to first file a charge with the EEOC. Davis makes clear that defendants cannot assert a jurisdictional defense to a lawsuit on the grounds that the employee failed to first file a charge with the EEOC. As such, if an employer receives a Title VII lawsuit, they must quickly explore whether the employee exhausted all of his or her administrative remedies before filing suit. Failure to timely raise such affirmative defense will result in that defense being waived.