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SCOTUS says Title VII’s EEOC Filing Requirement is NOT Jurisdictional and Objection is Waived if not Timely Raised

posted Jun 12, 2019, 6:45 AM by Allison Ayer

    Title VII’s requirement that an employee must file a charge of discrimination with the Equal Employment Opportunity Commission before he or she may file a lawsuit in court is a “claims processing” rule and not a “jurisdictional” rule says the Supreme Court of the United States. In a case called Fort Bend County Texas v. Davis, the Court explained that while the rule requiring the employee to file first with the EEOC is mandatory, the failure to make such an initial filing before suing in court will not prohibit the employee from pursuing his or her case if the defendant fails to raise an objection about that failure in a timely manner.  Here is what happened. 

    Lois Davis was an IT employee in Fort Bend County, Texas.  In 2010, she informed the human resources department that the director of IT, a man named Charles Cook, was sexually harassing her.  Cook resigned.  But according to Davis’s allegations, her supervisor, Kenneth Ford, who was an acquaintance of Cook, retaliated against Davis for reporting the sexual harassment by cutting her work duties.

    Title VII requires employees to first file an administrative action alleging employment discrimination in the EEOC (or a state agency with a work-sharing agreement with the EEOC) as a precondition to filing a Title VII civil action in Court.  Consistent with this requirement, Davis filed a charge of discrimination with the EEOC in March 2011 alleging sexual harassment and retaliation. 

    But while the EEOC charge was pending, Davis experienced additional work issues which supported a religious discrimination claim.  Davis was told to report to work on an upcoming Sunday.  She told her supervisor, Kenneth Ford, that she could not do so because of a commitment at church, and she offered to arrange for another employee to cover the shift.  Ford told Davis that if she did not show up for the Sunday shift, she would be fired.  Davis did not report to work, attending her church event instead, and she was fired. 

    After her termination, Davis filled out an EEOC intake questionnaire where she handwrote the word “religion” in the “Employment Harms or Actions” section, and she also checked the boxes for “discharge” and “reasonable accommodation” on that form.  But Davis never filed a new Charge of Discrimination amended the original formal charge to explicitly add a religious discrimination claim. 

    In January 2012, Davis filed a civil action in Texas Federal court after she received a notice of right to sue from the EEOC.  The civil action alleged, among other things, a claim for religious discrimination.  Importantly, Fort Bend, Davis’s employer, failed to object to the religious discrimination claim until years later.  In 2016, the employer asserted for the first time that the court lacked jurisdiction to decide Davis’s religious discrimination claim because she had not stated such a claim in the actual charge of discrimination filed at the EEOC. 

    If the EEOC filing requirement were a jurisdictional rule, then a challenge for failing to comply could be raised at any time by the defendant.  A court could even raise the issue on its own at any time. This is because matters of jurisdiction go to the fundamental question about whether a court has power  to hear or make a ruling on the case at issue.  This is why a jurisdictional issue cannot be waived. 

    By contrast, a mere “claim-processing rule” only requires parties to take certain procedural steps at certain specified times.  While these steps may be mandatory, an objection for failing to comply with such a rule or to take such required steps may be waived, or forfeited, if the defending party waits too long to raise an objection. 

    SCOTUS has now removed any ambiguity on the matter.  In this case, it decided that the EEOC filing requirement is a mandatory claims-processing rule, not a jurisdictional one.  As such, the employer in this case waived the right to object on the grounds that Davis failed to file the religious discrimination claim by waiting too long to raise the issue.  Davis’s religious discrimination claim therefore was allowed to proceed notwithstanding Davis’s failure to formally include the theory in her charge.

    Given this decision, employers must carefully review any civil action alleging employment discrimination to evaluate whether it asserts any claim not brought in the EEOC or comparable state agency.  If it does, employers must somehow raise the objection at the first opportunity or risk losing the defense in the litigation.   

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