Use It or Lose It: The United States Supreme Court Holds That Title VII’s Charge-Filing Requirement Is Not Jurisdictional, and As Such This Defense to a Title VII Claim Must Be Timely Raised
When presented with a lawsuit filed in federal court asserting violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.S. §§ 2000e to 2000e-17, it is wise for defense counsel to compare the claims in the federal complaint to those asserted in the Complainant’s Charge of Discrimination filed with the Equal
Employment Opportunity Commission (“EEOC”). It has long been the belief (although nowhere in Title VII has it been stated as such) that a “jurisdictional” requirement for plaintiff to proceed with a Title VII claim in federal court is to have first asserted such a claim before the EEOC.
Not so anymore; the United States Supreme Court recently clarified that the EEOC charge-filing process is a “mandatory” requirement, but not a “jurisdictional” one, meaning the defense that plaintiff failed to bring the charge to the attention of the EEOC before filing suit can no longer be asserted at any point in the litigation. Rather, such a defense will be forfeited “’if the party asserting the rule waits too long to raise the point.’” Fort Bend County, Texas v. Davis, 587 U.S. ___ (2019) (quotation omitted). As discussed herein, the distinction between a “mandatory” and “jurisdictional” requirement – terms which have long been conflated – should impact the way any Title VII workplace discrimination lawsuit is defended.
A. The EEOC Charge-Filing Process
Employee complaints of on-the-job harassment and discrimination are common. Between September 30, 2017 and September 30, 2018, the EEOC
received 76,418 charges of workplace discrimination; 53,694 of those charges asserted violations of Title VII or were filed concurrently under other
anti-discrimination statutes such as the ADA, ADEA, EPA and/or GINA. There were 1,527 charges (or 2.0%) which emanated out of New Jersey; 3,478 charges (or
4.6%) emanated out of New York State.
Workplace-related claims under Title VII may be brought against an employer by a terminated employee, current employee, or applicant. The EEOC must
notify the employer and investigate the allegations upon receipt of a charge. §2000e‒5(b). The EEOC has no has no authority itself to adjudicate
discrimination complaints, but may “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of . . . conciliation.” Ibid.
If conciliation fails, or is not initiated, and the EEOC chooses not to bring a civil action against the employer, a Complainant is entitled to
a “right-to-sue” notice 180 days after the charge is filed. §2000e‒5(f)(1); 29 CFR §1601.28. Armed with a right-to-sue notice, the Complainant may commence a
civil action in federal court against the employer. §2000e‒5(f)(1).
B. Lois Davis’ EEOC Charge against her Employer, Fort Bend County, Texas.
Lois Davis worked for Fort Bend County (Texas) and after developing the belief that she was subjected to harassment and retaliation, executed an Intake Questionnaire in February 2011, which evolved into a Charge of Discrimination the next month. During the pendency of her Charge, Ms. Davis developed the belief that she was being subjected to discrimination on the basis of her religion. She attempted to ”supplement” the allegations in her Charge but apparently did not do so properly, and no change was made in the formal Charge document. She received a Right to Sue notice and filed a Complaint in the United States District Court for the Southern District of Texas in January 2012, alleging, inter alia, religion-based discrimination.
Fort Bend County moved for Summary Judgment, which was granted by the District Court in September 2013, but the Fifth Circuit reversed that Order (as to the religion-based discrimination claim) in 2014. A petition for certiorari was denied in 2015.
Upon remand to the District Court, Fort Bend County for the first time – and “years into the litigation” – asserted the defense that the court lacked jurisdiction over Ms. Davis’ religion-based discrimination claim because the claim was not stated in her EEOC Charge of Discrimination. In 2016, the District Court granted Fort Bend County’s motion to dismiss, holding that the religion-based discrimination had to be raised before the EEOC, and that such a requirement was “jurisdictional” and thus nonforfeitable. In 2018, the Fifth Circuit reversed; holding that charge-filing requirement was (as the United States Supreme Court put it) a “prudential prerequisite to suit” and that Fort Bend County could not wait until after “an entire round of appeals all the way to the Supreme Court” to raise it.
The United States Supreme Court granted Fort Bend County’s petition for certiorari in 2019.
C. The Supreme Court’s Findings Concerning the Mandatory (But Not Jurisdictional) Requirement that Plaintiff Exhaust Remedies with the EEOC.
The Supreme Court noted prior precedent that “jurisdiction . . .is a word of many, too many meanings” and that there has been “profligate use of the term.” Challenges to subject-matter jurisdiction may be raised at any time and the District Court must consider them sua sponte. This is to be distinguished from nonjurisdictional claim processing rules, which “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specific times.”
In the context of the EEOC charge-filing requirement, the Court noted its similarity to many “mandatory claim processing rules” which, if not raised, can be forfeited. Title VII itself does not describe the requirement as jurisdictional, and is more of a “processing rule” which does not “delinat[e] the adjudicatory authority of courts.” Therefore, the Court held that “if the party asserting the rule waits too long to raise the point” it risks losing the defense.
The Court’s ruling should not impact how a Title VII Complaint is defended. It was, and remains, prudent to examine the EEOC Charge to confirm that a plaintiff’s federal claims overlap with the charges investigated by the EEOC. The Supreme Court did not delineate, but rather left grey, the specific amount of time in which a defendant must raise the defense that plaintiff failed to bring a charged before the EEOC. However, affirmative defenses need be raised in the
defendant's answer. Why would defense counsel wait? As the Supreme Court noted, defendants “have good reason to promptly raise an objection that may rid them of the lawsuit filed against them” and a “Title VII complainant would be foolhardy consciously to take the risk that the employer would forego a potentially dispositive defense.”