The U.S. Supreme Court recently clarified that the requirement that a plaintiff exhaust his/her administrative remedies before filing a discrimination claim under Title VII of the Civil Rights Act is a mandatory claim-processing rule, and not a jurisdictional requirement. The decision increases the importance of raising the defense of failure to exhaust administrative remedies early in employment litigation, so as to avoid a potential waiver of the defense.

Under Title VII, which is a federal anti-discrimination law, employees and job applicants are required to first file a charge of discrimination with the EEOC and allow the agency to investigate before filing a lawsuit. This is commonly referred to as exhausting one’s administrative remedies.  The EEOC charge must be filed within 180 days of when the alleged discrimination took place (or 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis). After the EEOC concludes its investigation of the charge, it will provide the charging party with a “Notice of Right to Sue,” which provides the charging party with notice of their right to file a lawsuit. When an employee asserts a basis of discrimination in the lawsuit that he/she did not assert during the EEOC investigation, the employer may have grounds to dismiss the claim that was not presented to the EEOC on the basis that the plaintiff did not exhaust his/her administrative remedies.

While some courts have held that this exhaustion requirement is jurisdictional, meaning that it can be raised at any time by an employer during a lawsuit, other courts have held that it is a claim-processing rule, which means that the defense can be forfeited if not raised in a prompt manner. The Supreme Court tackled that split among courts in Fort Bend Cty., Texas v. Davis, No. 18-525 (U.S. June 3, 2019).

In Davis, Lois Davis filed an EEOC charge against her employer, Fort Bend County, alleging sexual harassment and retaliation for reporting the harassment under Title VII. While Davis’s EEOC charge was pending, Fort Bend terminated her employment.

Thereafter, Davis attempted to supplement her EEOC charge by handwriting “religion” on an EEOC intake questionnaire, but she did not formally amend her EEOC charge to add religion as a basis of her claim. After the EEOC issued a right-to-sue letter, Davis filed a lawsuit against Fort Bend County in the Southern District of Texas, alleging religious discrimination and retaliation. After several years of litigation, Fort Bend asserted for the first time that the trial court lacked jurisdiction to decide Davis’s religious discrimination claim because she did not exhaust her administrative remedies. Specifically, Fort Bend argued that Davis’s handwriting on the intake questionnaire did not amend the formal charge document, and that the religious discrimination claim was therefore not exhausted. The district court agreed and granted Fort Bend's motion to dismiss. On appeal, the Fifth Circuit Court of Appeals reversed, holding that Title VII's charge-filing requirement is not jurisdictional, and that the employer waived its right to raise the issue in Davis's case because it waited too long to raise the objection.

The Supreme Court agreed with the Fifth Circuit Court of Appeals, holding that “Title VII’s charge-filing precondition to suit [is not] a ‘jurisdictional’ requirement that can be raised at any stage of a proceeding[, but rather] a procedural prescription [that is] mandatory if timely raised, but subject to forfeiture if tardily asserted.” The court clarified that its decision does not change the mandatory

nature of the exhaustion requirement, because “a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.”

What effect does the court’s decision have on employers? The Supreme Court’s decision mandates that greater attention be directed to identifying and asserting the defense of failure to exhaust administrative remedies at the outset of a case. If employers overlook the exhaustion issue completely, or fail to note that perhaps one claim in a multi-claim complaint was not exhausted, they may lose the defense. At bottom, the decision makes clear that when it comes to the administrative exhaustion defense, employers must speak now or forever hold their peace.