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Supreme Court Rules that Employers Must Timely Raise Failure to Exhaust Administrative Remedies in Title VII Cases or Risk Forfeiting Right to Challenge

On Monday, June 3, 2019, the U.S. Supreme Court issued a decision in Fort Bend County v. Davis, unanimously finding that Title VII’s administrative exhaustion requirement is not jurisdictional and that employers may forfeit the right to challenge Title VII claims on the basis of the employee’s failure to exhaust administrative remedies, if such challenges are not raised in a timely fashion.

The case arose after Fort Bend County employee Lois M. Davis filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) claiming that her supervisor unlawfully retaliated against her for complaining about sexual harassment. While the charge was pending, the county fired Ms. Davis for failing to appear for work on a Sunday that conflicted with a church event. Ms. Davis attempted to add “religion” as a basis for her claim of discrimination on the EEOC’s intake questionnaire but neglected to amend her formal charge. After receiving a right-to-sue notice from the EEOC, Ms. Davis commenced an action in the U.S. District Court for the Southern District of Texas alleging discrimination on account of religion as well as retaliation for reporting sexual harassment. The district court granted the county’s motion for summary judgment on all of Ms. Davis’ claims, but the U.S. Court of Appeals for the Fifth Circuit reversed as to the religion-based discrimination claim. 

On remand to the district court, the county asserted for the first time that the district court lacked jurisdiction over Ms. Davis’ religion-based discrimination claim because she had failed to state that claim in her EEOC charge. The District Court granted summary judgment on that basis, but the Fifth Circuit reversed, finding that the requirement to file an EEOC charge was only a prudential prerequisite to the suit that could be forfeited by the county’s failure to assert that defense in a timely way, rather than a jurisdictional requirement that could be raised at any time.

Resolving a split among the courts of appeal, the Supreme Court affirmed the Fifth Circuit’s decision and held that Title VII’s charge-filing requirement “is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” The Court noted that a claim-processing rule may be mandatory in the sense that a court must enforce the rule if it is raised in a timely fashion. However, unlike a prescription limiting the kinds of cases a court may adjudicate—i.e. a limitation involving a court’s subject matter jurisdiction—Title VII’s charge-filing requirement is the type of mandatory claims-processing rule that ordinarily is forfeited by the employer if the employee’s noncompliance is not timely asserted. 

Prior to the Davis decision, some circuit courts had strictly limited the claims that could be brought in litigation to those listed in the charge of discrimination before the EEOC or a state or local fair employment agency, reasoning that a court’s jurisdiction was limited by the scope of the charge. Now that the Supreme Court has made clear that administrative exhaustion is not a jurisdictional requirement, it is possible that courts in those circuits will interpret charges of discrimination more broadly, potentially allowing employees to assert additional claims once they get to court.

The Davis decision serves as an important reminder for employers not to delay raising challenges to a plaintiff’s failure to exhaust administrative remedies for Title VII claims as well as other statutes that also require filing with the EEOC, such as the Americans with Disabilities Act and the Age Discrimination in Employment Act.

Copyright © by Ballard Spahr LLPNational Law Review, Volume IX, Number 155


About this Author

Louis Chodoff, Labor, Employment, Harassment, Discrimination, Ballard Spahr, Law FIrm

Louis L. Chodoff handles labor and employment law counseling and litigation associated with harassment, discrimination, wage and hour, whistleblower, wrongful discharge, and restrictive covenant disputes.

Mr. Chodoff litigates in state and federal courts as well as in various administrative agencies such as the New Jersey Department of Labor, New Jersey Division on Civil Rights, New Jersey Office of Administrative Law, Pennsylvania Human Relations Commission, and the Equal Employment Opportunity Commission. He counsels his clients on the employment and labor law implications of...

Christopher Kelly, Ballard Spahr Law Firm, Philadelphia, Labor and Employment Litigation Attorney

Christopher J. Kelly is an attorney in Ballard Spahr's Labor and Employment group. Chris has represented both public and private employers in a broad range of litigated matters, including wage and hour, harassment, discrimination, retaliation, whistleblower, breach of contract, unfair competition, and wrongful termination, and employment- and business-related tort claims in both state and federal courts across the country.

Chris has served as lead counsel in a variety of matters and conducted trials to verdict and judgment. He has handled appeals before the New Jersey Superior Court Appellate Division and the U.S. Court of Appeals for the Third Circuit. 

Chris has significant experience serving the legal needs the public sector, higher education, and health care industries. He also has experience providing day-to-day employment counseling. 

Prior to joining the firm, Chris served as a Deputy Attorney General in the New Jersey Attorney General's Office, defending New Jersey public employers against employment-related statutory, constitutional, and tort claims. In addition, he practiced in Los Angeles for six years, initially as a sole practitioner and then as managing partner of a five-attorney firm where he handled California state and federal discrimination and wage and hour matters as well as commercial litigation.

Katherine Atkinson, Employment, Litigator, Philadelphia, Ballard Spahr, Law Firm

Katherine J. Atkinson represents public and private employers in employment litigation involving claims under federal and state law. Her practice also focuses on counseling employers on a wide range of labor and employment issues.

Ms. Atkinson assists clients in the development and implementation of personnel policies, drafts employment agreements, conducts workplace trainings for employees, and advises clients on compliance with various employment laws, including Title VII, PHRA, FLSA, ADEA, FMLA, ADA, and the Pennsylvania Wage Payment and Collection Law. Ms. Atkinson also counsels...