U.S. Supreme Court Rules that Failure to File a Charge of Discrimination with the EEOC Is Not a Jurisdictional Bar to Suit

June 25, 2019 Advisory

The United States Supreme Court recently held that a plaintiff that fails to file a Title VII charge of discrimination with either the Equal Employment Opportunity Commission (EEOC) or an equivalent state agency before filing a lawsuit can still proceed in federal court, if the employer has failed to timely bring the plaintiff’s noncompliance with the procedural filing requirements to the court’s attention.

In Fort Bend County, Texas v. Davis, the Supreme Court unanimously held that failure to exhaust administrative remedies is not a jurisdictional defense but is an affirmative defense that must be timely asserted. Jurisdictional defenses function as requirements on a plaintiff in order to maintain a suit and can be raised at any time, whereas an affirmative defense must be raised by a defendant in a timely manner or else it will be waived. The majority of federal circuit courts had already held that the timely filing of a charge of discrimination is not a jurisdictional requirement, but rather a mandatory procedural requirement that can be waived, if an employer is not diligent in bringing the procedural defect to the trial court’s attention.

Title VII, along with the Americans with Disabilities Act, the Age Discrimination and Employment Act and the Genetic Information Nondiscrimination Act, requires a plaintiff to initially file a charge of discrimination with either the EEOC or equivalent state agency, then wait 180 days for the agency to investigate or take action before requesting a right to sue letter from the applicable agency. In jurisdictions that do not have a state anti-discrimination agency, only an EEOC field office, the employee will have 180 days to file a charge of discrimination. In jurisdictions that have both, they will have 300 days to file.

Failure to exhaust administrative remedies is typically asserted as an affirmative defense to a plaintiff’s discrimination lawsuit. The Court’s decision in Fort Bend County does not change the requirements for exhausting administrative remedies, but clarifies that an employer’s failure to timely assert and prosecute this affirmative defense can result in waiver of this procedural requirement.. 

Employers and their legal counsel should carefully scrutinize a plaintiff’s lawsuit to ensure that the plaintiff has exhausted their administrative remedies.  Specifically, the employer should determine if the plaintiff filed a charge of discrimination with either the EEOC or state equivalent agency; whether the allegations asserted in the complaint are addressed in the charge of discrimination; and whether the allegations contained in the charge occurred within either 180 days or 300 days of the filing of the charge. If the plaintiff has failed to exhaust their administrative remedies, the employer should move to dismiss the plaintiff’s discrimination claims at the commencement of the litigation. This case highlights the importance of consulting with labor and employment counsel early in legal proceedings to ensure that all applicable defenses are raised at the appropriate time.

Armstrong Teasdale’s Employment and Labor practice closely monitors developments in the law and court decisions from around the country for rulings that affect employer’s legal strategies. We will issue additional alerts as the legal obligations of employers continue to evolve.