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Waiver Warning: SCOTUS Determines Title VII Failure to Exhaust Defense Can be Waived
June 13, 2019
A recent decision from the Supreme Court of the United States - Fort Bend County v. Davis - has sparked conversations about whether a current or former employee must file a complaint with the EEOC before suing an employer for discrimination. Many of you may have heard about this case, and we wanted to set the record straight on what it says and—perhaps more importantly—what it does not say.

As a starting point, Title VII has an “administrative exhaustion requirement” which means a former/current employee has to file a discrimination claim with the EEOC before he/she can sue the employer for discrimination in court. Questions arose whether an employee’s failure to file with the EEOC means a federal court cannot hear a discrimination lawsuit.

Fort Bend County v. Davis asked this question, because Davis did not file at the EEOC before suing her former employer, Fort Bend County. Usually, in these situations, the defendant will assert the failure to exhaust defense and the case is dismissed. Fort Bend County, however, did not assert this defense until well into the case, specifically not until after a partial summary judgment decision from the district court. Davis appealed, and the Fifth Circuit remanded part of the case back down to the district court. There, for the first time, Fort Bend County asserted Davis’ lawsuit had to be dismissed because she did not file with the EEOC first. Thus, the question arose: Could the district court still hear Davis’ discrimination case, or did it lack jurisdiction because the exhaustion requirement was not met? Fort Bend County argued the Title VII’s administrative exhaustion requirement was jurisdictional, meaning a federal court cannot hear a Title VII case where there was no agency filing, without exception—even when there is a delay in asserting the defense. Davis argued, in turn, that the requirement was merely a claim-processing rule and a defendant could waive (and forever lose) the failure to exhaust defense if it does not raise the defense in a timely fashion.

Ultimately, the Supreme Court sided with Davis. Justice Ginsburg authored the opinion and noted the term “jurisdictional” is actually quite narrow, being limited to either (a) jurisdiction sections of statutes authored by Congress, or (b) Supreme Court case law on jurisdiction that Congress has not subsequently altered by statute. Anything outside of these two categories is not jurisdictional. This position, in essence, placed the burden on Congress to speak clearly when it wishes to impose jurisdictional requirements.

Justice Ginsberg then turned to Title VII to see if it fell into either of two categories. In doing so, the Supreme Court noted the administrative exhaustion requirement was not located in the “jurisdictional” portion of that statute and Title VII’s exhaustion requirement differs from other statutes. Thus, the Supreme Court concluded the administrative exhaustion requirement for a Title VII discrimination case is not “jurisdictional” and federal courts could hear cases like this one, where the employer failed to timely raise the failure to exhaust defense.
Because the case contained a sort of “double negative” regarding Davis’ failure to file with the EEOC and Fort Bend County’s failure to timely assert the defense, there has been some confusion about what this case means for business. To be clear, a current/former employee is still required to file a Title VII discrimination case with the EEOC before he/she can sue the employer in court. Failure to do so can result in dismissal of the case.

However, the employer can forever waive the failure-to-exhaust defense by asserting it too late (or not at all). Therefore, employers and businesses are encouraged to assert this defense as soon as applicable, and keep a close eye on all EEOC charges.

Please contact us with any questions.
Labor & Employment Law Chelsea E. Thompson