On January 23, 2019, we reported that the Supreme Court had agreed to review a decision from the Fifth Circuit Court of Appeals, Ft. Bend County v. Davis, which would answer conclusively whether the pre-filing administrative exhaustion requirement is jurisdictional (meaning that failure to fully exhaust administrative remedies would bar litigation) or non-jurisdictional and thus subject to waiver. The Supreme Court issued its decision on June 3, 2019 and ruled that administrative exhaustion is non-jurisdictional and subject to waiver.

In Ft. Bend County, Ms. Davis filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging sexual harassment and retaliation. While Ms. Davis’ charge was pending, she was fired, allegedly for going to a church event instead of working as scheduled on a Sunday. Ms. Davis never formally amended her EEOC charge to allege religious discrimination in addition to her other theories, but nonetheless sued on that basis (among others) after receiving a notice of right to sue from the EEOC. Years into the litigation, the employer realized that Ms. Davis had never exhausted her administrative remedies with respect to her religious discrimination claim and moved to dismiss the lawsuit, claiming that the district court lacked jurisdiction to adjudicate Ms. Davis’s case. The district court agreed and dismissed Ms. Davis’s lawsuit. The Fifth Circuit reversed and reinstated the suit finding Title VII’s charge-filing requirement a prudential, but not jurisdictional, prerequisite to suit, and the employer’s failure to promptly raise an objection to constitute a waiver of its objection.

The Supreme Court unanimously affirmed the Fifth Circuit’s decision. 587 U.S. ____ (2019). Justice Ginsburg, writing for the Court, noted that “Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain . . . or the persons over whom a court may exercise adjudicatory authority.” She dismissed Title VII’s charge filing instruction as being “not of that character,” and “properly ranked among the array of claim-processing rules that must be timely raised to come into play.” Therefore, although EEOC charge-filing is still a mandatory prerequisite to filing suit and remains a procedural step that a court must enforce if the issue is timely raised, tardiness on the part of employers to object to a claimant’s exhaustion efforts may result in a waiver of any such argument.

The advice here is clear: Employers and their counsel must carefully review employment suits and scrutinize the EEOC charges that precede them to ensure that no allegations are raised in lawsuits that were not specifically identified during the EEOC’s charge processing. Failure to raise objections early may be deemed consent to try such issues despite the claimant’s failure to fully exhaust her administrative remedies.