Resolving a circuit split regarding the jurisdictional nature of Title VII’s charge-filing requirement—the statutory requirement that an employee who alleges that he or she has been subjected to unlawful treatment is required to file a charge with the Equal Employment Opportunity Commission (“EEOC”), or an equivalent state or local agency, prior to bringing suit in court—the United States Supreme Court issued a unanimous opinion on June 3, 2019, penned by Justice Ginsburg, holding that “a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.” This decision—which affirms a recent Fifth Circuit decision, is consistent with rulings from the First, Second, Sixth, Seventh, Eighth, Ninth, and D.C. Circuits, but overrules Fourth and Tenth Circuit precedent—has potentially significant implications for unwary employers when defending themselves in a Title VII lawsuit.
The facts of Fort Bend County v. Davis are straight-forward: During Lois Davis’s employment with Fort Bend County, Texas (the “County”), she filed an intake questionnaire and charge with the Texas Workforce Commission for alleged sexual harassment and retaliation (referred to herein as the “Charge”). While the Charge was pending, Ms. Davis’s employment with the County was terminated after she allegedly failed to report to work on a Sunday due to a church commitment. Instead of amending her Charge, Ms. Davis tried to add her religious discrimination claim through a handwritten update to her intake questionnaire. Soon after doing so, Ms. Davis was notified of her right to sue the County in federal district court and did so in January 2012, alleging discrimination on the basis of religion and retaliation for reporting sexual harassment.
After years of litigation, including a petition of certiorari to the Supreme Court, the case ended up back in the district court on the issue of whether Ms. Davis was discriminated against on the basis of her religion. It was at this point that the County argued for the first time in a motion to dismiss that the court lacked jurisdiction to hear Ms. Davis’s claim because she did not assert religious discrimination in her Charge. The district court granted the County’s motion to dismiss but was later reversed by the Fifth Circuit, which found that the charge-filing requirement was a “prudential prerequisite” that can be forfeited by an employer if not timely asserted—not a jurisdictional requirement.
Agreeing with the Fifth Circuit and a litany of other circuits, the Supreme Court held that the charge-filing requirement is not a “jurisdictional prescription delineating the adjudicatory authority of courts” that can be raised at any stage of a case; rather, it is a mandatory procedural prescription that “must be timely raised to come into play.” Practically, this decision means that employers faced with a Title VII lawsuit need to promptly review the relevant charge to determine whether any allegations in the complaint can be dismissed as a result of the plaintiff’s failure to raise the allegation with the EEOC and vigilantly assert defenses when they become available. Exactly how long an employer can wait before raising this defense without risking forfeiture, or whether the mandatory claim-processing rule can be subject to equitable exceptions, are issues that were not resolved by the Supreme Court, but we anticipate that these issues will be litigated in the lower courts going forward.
Although this issue has significant implications for Title VII jurisprudence, we do not anticipate, for the reasons articulated by Justice Ginsburg, that many plaintiffs will use this ruling as an opportunity to purposefully avoid the charge-filing requirement: “[R]ecognizing that the charge-filing requirement is nonjurisdictional gives plaintiffs scant incentive to skirt the instruction. Defendants, after all, have good reason promptly to raise an objection that may rid them of the lawsuit filed against them. A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.” This decision does, however, clarify the scope of a defense—albeit one that must be timely raised—that should be part of an employer’s arsenal when faced with a Title VII lawsuit.