Mandatory but not Jurisdictional – SCOTUS Decides What Employers Must do to Kick Charge-less Title VII claims


On June 3, 2019, the U.S. Supreme Court in Fort Bend County, Texas v. Davis unanimously held that Title VII’s charge-filing requirement is mandatory for claimants, but not jurisdictional.  Stated plainly, employees can still file and proceed with Title VII lawsuits without first filing a charge of discrimination, absent a timely-asserted exhaustion defense by employers.

In Davis, the claimant filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging sexual harassment and retaliation for internally reporting the harassment.  The claimant was later terminated for reasons she believed to be based on her religion.  Although the claimant amended her intake questionnaire with the EEOC to add religion-based claims, she never amended her EEOC Charge of discrimination.  After receiving a right to sue notice, the claimant filed a lawsuit asserting the claims of harassment and retaliation as stated in her charge, and also included discrimination based on religion.  The case proceeded on the merits on all of claimant’s claims and summary judgment was entered in the employer’s favor on all claims.  The U.S. Fifth Circuit Court of Appeals reversed on the claimant’s religious discrimination claim.  On remand, the district court granted the employer’s motion to dismiss, wherein the employer asserted for the first time that the claimant failed to assert religious discrimination claims in her EEOC charge and, therefore, the court lacked jurisdiction over those claims.  The Fifth Circuit reversed, holding that a failure to exhaust administrative remedies under Title VII is not a jurisdictional bar to sue, but rather is an affirmative defense, which is subject to waiver.  The court further held that the employer waived the affirmative defense by not asserting it in its answer or moving on it earlier in the case.

The U.S. Supreme Court agreed with the Fifth Circuit and held that Title VII’s charge-filing instruction is not jurisdictional, but rather a mandatory, nonjurisdictional claim-processing rule that must be “timely raised to come into play.” 

This case should remind all employers to timely assert all applicable or potentially applicable affirmative defenses.  Employers are encouraged to have thoughtful discussions with their counsel to review waivable defenses that should be asserted as early as possible in litigation.