Supreme Court Resolves Circuit Split on Title VII’s Charge-Filing Requirement

August 4, 2019

Title VII of the Civil Rights Act of 1964 requires employees to exhaust certain administrative remedies before pursuing an employment discrimination lawsuit in court. There’s no question that it’s a mandatory requirement. Courts across the country have been split, however, about the consequences of an employee’s failure to follow the rule. In a rare unanimous decision, the U.S. Supreme Court recently resolved the split, placing the burden on employers.

How Claim Exhaustion Works Under Title VII

Title VII prohibits employers with 15 or more employees from discriminating based on race, color, religion, sex, or national origin. Before an employee can file a Title VII claim in court, however, she must first file a charge with the Equal Employment Opportunity Commission (EEOC), the federal agency that administers and enforces workplace antidiscrimination laws, or with a state agency that has a “work-sharing” agreement with the EEOC. The procedure—known as “exhausting” administrative remedies—allows parties to resolve claims before the suit.

Once the EEOC receives the employee’s charge, it can proceed in a number of ways. It may invite the parties to a voluntary conciliation, where they can reach a resolution outside of court. The agency may choose to do nothing or litigate the claim in court itself. If the EEOC decides to do nothing, it must issue the employee a right-to-sue letter. If the employee decides to proceed with filing a lawsuit in court, she must do so within 90 days of receiving the letter.

Again, the requirement to file a charge with the EEOC (or a state agency with a work-sharing agreement) is mandatory. Before the Supreme Court’s recent unanimous decision, however, the circuits were split over whether the requirement is “jurisdictional” or a “mandatory claim-processing rule”:

  • If the requirement is considered jurisdictional, it would mean a federal court doesn’t have the authority even to hear a Title VII claim unless an employee has exhausted the administrative remedies.
  • If the requirement is a mandatory claim-processing rule, it would mean a court can hear a Title VII claim if the employer fails to object in a timely manner to the employee’s failure to follow the rule.

Stated otherwise, if the requirement is jurisdictional, an employer’s failure to object in a timely fashion doesn’t result in a waiver. If the requirement is a mandatory claim-processing rule, however, an employer’s failure to object in a timely way would result in a waiver of the defense.

Most circuits, including the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers), have ruled the requirement is not jurisdictional. Therefore, a federal court can consider claims even when an employee didn’t file a charge first with the EEOC. The Supreme Court resolved the circuit split.

Facts

In 2007, Lois M. Davis began working for Fort Bend County (Texas) as a desktop support supervisor responsible for overseeing informational technology (IT) technicians. Charles Cook was the IT department’s director at the time. In 2009, he hired personal friend and fellow church member Kenneth Ford to be Davis’ supervisor.

In 2010, Davis filed a complaint with Fort Bend’s HR department alleging Cook was sexually harassing her. The county investigated and substantiated the allegations. After the probe, Cook resigned, and Davis alleged Ford began retaliating against her for reporting on his personal friend’s behavior. She alleged he did so by limiting her work responsibilities.

In early 2011, Davis submitted an “intake questionnaire” and filed a charge with the Texas Workforce Commission alleging harassment and retaliation. Complaints lodged with the commission are relayed to the EEOC under a work-sharing agreement between the two agencies.

While Davis’ EEOC claims were pending, Fort Bend was preparing for the installation of some new equipment. The process was scheduled to take place over the July 4 weekend, and all technical support staff, including Davis, were to be involved.

On June 28, Davis told Ford she wouldn’t be available to work on the morning of Sunday, July 3, because of a previous religious commitment. She arranged for a substitute to work her shift. Ford didn’t OK the absence, however, and informed her it would be grounds for termination. After Davis didn’t report to work that day, Fort Bend fired her.

After the termination, and to supplement the allegations in her charge, Davis handwrote “religion” in the intake questionnaire. She made no changes, however, to the formal charge document. A few months later, she received a right-to-sue letter.

Davis then commenced a lawsuit in district court, alleging both retaliation and religious discrimination under Title VII and the intentional infliction of emotional distress. The district court granted Fort Bend’s request for summary judgment (dismissal without a trial), and Davis appealed. The 5th Circuit (which covers Texas, Louisiana, and Mississippi) agreed with the district court on the retaliation claims but reversed on the religious discrimination claim.

When the case returned to the district court on the issue of religious discrimination, Fort Bend alleged for the first time that Davis had failed to exhaust her administrative remedies. In particular, she had failed to assert the religious discrimination claim in her EEOC charge. Accordingly, the employer argued the district court lacked jurisdiction.

The district court agreed with Fort Bend and said administrative exhaustion is a jurisdictional prerequisite in Title VII cases. Accordingly, Davis’ argument that Fort Bend waived the argument was irrelevant because a “jurisdictional” requirement was “nonforfeitable.” The 5th Circuit reversed, holding that Title VII’s charge-filing requirement was not jurisdictional. Rather, the requirement was a “prudential prerequisite” to a suit, which the county had forfeited when it didn’t raise the issue in a timely fashion.

Supreme Court Ruling

The Supreme Court, in a unanimous decision, said the requirement to exhaust remedies is not a jurisdictional requirement that can be raised at any stage of a lawsuit. Rather, the requirement is merely a claim-processing rule that an employer forfeits if it isn’t raised in a timely manner. The Court explained that federal courts have jurisdiction over Title VII claims based on the Act’s jurisdictional provision. The charge-filing requirements are contained in separate provisions of the Act. Accordingly, those requirements don’t confer jurisdiction.

The Supreme Court provided no guidance on when an objection to a claim-processing rule would no longer be considered “timely.” It simply held that an employer forfeits an objection based on a claim-processing rule if it waits “too long” to raise the point. The only guidance Fort Bend provides is that waiting until “after an entire round of appeals” was considered too long of a delay on the employer’s part. Fort Bend County v. Davis, 597 U.S. ___ (2019).

Bottom Line

Employees are still required to exhaust administrative remedies before filing a claim in federal court. Accordingly, the Fort Bend decision shouldn’t be interpreted as doing away with Title VII’s chargefiling requirements. It simply clarifies that the failure to do so won’t result in an automatic dismissal of the suit. In fact, the burden is on the employer to assert the procedural defense in a timely way or lose it.

Accordingly, you should act prudently when faced with a Title VII lawsuit. You should request the administrative records to ensure the employee properly asserted the claims at that stage. If not, you should assert in your pleadings that the employee failed to exhaust the administrative remedies. Your failure to do so may be deemed a waiver of the defense.

For more information about "Supreme Court Resolves Circuit Split on Title VII’s Charge-Filing Requirement," contact Aneet Kaur at akaur@axley.com or 608.283.6786.