Supreme Court Holds That in Title VII Suits, Employers Must Raise Failure to Exhaust Administrative Remedies in a Timely Manner or Risk Forfeiting the Affirmative Defense

The Supreme Court held in Fort Bend County v. Davis that the charge-filing precondition to suit of Title VII of the Civil Rights Act of 1964 is a mandatory claim-processing rule subject to waiver, not a jurisdictional bar to suit that can be raised at any point during the litigation. As such, employers must timely raise their failure to exhaust administrative remedies affirmative defense or risk that a court may hold that the defense has been forfeited.

Title VII prohibits discrimination in employment on the basis of race, color, religion, sex or national origin, as well as retaliation against a person who asserts rights under the statute. Before a complainant files a Title VII action in court, the statute requires that a complainant first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or the applicable state or local agency. The EEOC then notifies the employer and investigates the claim(s). If the EEOC determines that there is no reasonable cause to believe the complainant was subjected to discrimination or the complainant requests a right-to-sue notice, the EEOC issues a right-to-sue notice to the complainant, after which the complainant can commence a court action against the employer for the claim(s) alleged in the charge.

In Fort Bend County v. Davis, Lois Davis (Davis) filed a charge against her employer alleging sexual harassment and retaliation. While her charge was pending with the EEOC, Davis was terminated, allegedly for going to a church event instead of showing up for work on a Sunday. While she never formally amended her EEOC charge, Davis handwrote “religion” on an intake questionnaire, attempting to assert an additional claim of religious discrimination. Davis received a right-to-sue letter and subsequently commenced suit in federal court, alleging sexual harassment, retaliation and discrimination based on her religion. After five years of litigation, with only the religion discrimination claim remaining, Davis’ employer moved to dismiss that claim, arguing that the District Court lacked jurisdiction to adjudicate the claim because Davis did not assert that claim in her EEOC charge. The District Court agreed and dismissed Davis’ lawsuit, holding that because the claim-filing requirement was jurisdictional it could be raised at any time in the litigation. The Court of Appeals for the Fifth Circuit reversed, holding that Title VII’s charge-filing requirement is not jurisdictional and the employer’s opportunity to raise its objection had been forfeited because the employer waited too long to do so. 

In a unanimous opinion authored by Justice Ruth Bader Ginsburg, the Supreme Court affirmed the ruling of the Fifth Circuit, holding that Title VII’s charge-filing instruction is “properly ranked among the array of claim-processing rules that must be timely raised to come into play.” The Court held that while the charge-filing requirement is mandatory, it is not jurisdictional.

To be clear, the Supreme Court did not eliminate a plaintiff’s requirement to file an EEOC charge as a precondition to suit. Further, an employer may still obtain dismissal of Title VII claims based on a plaintiff’s failure to exhaust administrative remedies as long as the employer promptly raises the affirmative defense. While the Court did not explicitly state a deadline by which the defense must be raised, we suggest that employers include the defense as early as possible — in their initial answer and/or motion to dismiss.