Title VII’s charge-filing requirement is nonjurisdictional and is subject to forfeiture rules, the US Supreme Court ruled unanimously on June 3. The decision does not eliminate the rule that employees must first file charges with the Equal Employment Opportunity Commission (EEOC) or the appropriate state agency before filing a Title VII lawsuit, but it makes plain that employers who fail to timely assert a defense on this basis may forever lose that defense. Employers and their counsel should therefore review the entire administrative history of a case upon receiving a Title VII complaint, and act swiftly at the onset of litigation to avoid forfeiture of such defense.
In Fort Bend County, Texas v. Davis,[1] the plaintiff informed her employer’s human resources department that a manager was sexually harassing her. After the employer conducted an investigation, the manager resigned. The plaintiff alleges that her supervisor, who was friendly with that manager, began retaliating against her after the resignation by “curtailing her work responsibilities.”
In early 2011, the plaintiff filed an intake questionnaire and a charge with the Texas Workforce Commission, which relayed the charge to the EEOC. While the charge was pending, the employer instructed the plaintiff to report to work on a Sunday. The plaintiff refused; she had a prior commitment at her church that day. As a result, the employer fired her. The plaintiff then supplemented her intake questionnaire by handwriting “religion” on the “harms” portion of the document and by checking boxes for “discharge” and “reasonable accommodation.” Significantly, she made no change to her pending, formal charge document.
In January 2012, the plaintiff filed suit. The employer moved for summary judgment, which was affirmed on appeal as to the retaliation claim but was reversed as to the religion-based discrimination claim. On remand, and for the first time in the years-old litigation, the employer moved to dismiss the plaintiff’s complaint on the basis that she failed to state a religion-based discrimination claim on her formal charge of discrimination.
This motion teed up the key issue of the case. If, on the one hand, Title VII’s charge-filing requirement is jurisdictional, then such a motion could be raised at any time and could result in the dismissal of the claim. If, on the other hand, the requirement is not jurisdictional, then the five-year delay may result in forfeiture of the defense and denial of the motion. The district court held the rule was jurisdictional, but the US Court of Appeals for the Fifth Circuit disagreed. The Supreme Court granted the employer’s petition for a writ of certiorari to resolve a split in the circuit courts of appeal on this issue.
Agreeing with the Fifth Circuit, a unanimous Supreme Court affirmed. “A rule may be mandatory without being jurisdictional,” the Court reasoned. And sure enough, a number of mandatory claim-processing rules are indeed nonjurisdictional; e.g., (1) the Railway Labor Act’s direction that, before commencing an arbitration, parties to particular railroad labor disputes must first attempt settlement in conference,[2] and (2) Title VII’s time limitation for filing a charge with the EEOC.[3]
Hewing tightly to legislative intent, the Supreme Court opined that Congress could have said it was jurisdictional, either by incorporating it into a jurisdictional provision of Title VII or by attaching a jurisdictional label to the requirement. But, in fact, it did not. “[W]hen Congress does not rank a [prescription] as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”[4] Thus, this “claim-processing rule” is forfeited if not timely raised.
Davis is in keeping with the Court’s recent drive to “ward off” the “many, too many meanings” of the term “jurisdiction.”
That Title VII’s charge-filing requirement is nonjurisdictional does not mean that potential plaintiffs can ignore the rule and go straight to court. The Court made clear that an employee who skirts the rule does so at his or her own peril, stating, “A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.”
When appropriate, employers must act swiftly by asserting, as soon as possible, a defense on this basis. “Defendants . . . have good reason promptly to raise an objection that may rid them of the lawsuit filed against them.” Delay in such a course may result in forfeiture.
On receiving a complaint, employers and their counsel should review thoroughly the administrative history of the case. In the event the employee failed to assert the same claim or the elements of that claim, the employer defendant should consider moving to dismiss on such a basis at the onset of the litigation. If an early motion to dismiss is imprudent, then, at a minimum, employers should assert early the affirmative defense of failure to exhaust administrative remedies.
Of note, the Supreme Court left open the question of how much delay is too much delay such that it results in forfeiture. In this case, waiting several years until “after an entire round of appeals” qualified. We anticipate more development in this area.
If you have any questions or would like more information on the issues discussed in this Law Flash, please contact any of the following Morgan Lewis lawyers:
Philadelphia
A. Klair Fitzpatrick
Boston
Siobhan E. Mee
Chicago
Sari M. Alamuddin
New York
Melissa C. Rodriguez
San Francisco
Michael D. Schlemmer
[1] Fort Bend County, Texas v. Davis, No. 18-525, 587 U.S. ____ (2019).
[2] Id. (citing Union Pacific R. Co. v. Locomotive Engineers, 558 U.S. 67, 82 (2009)).
[3] Id. (citing Zipes v. Trans Word Airlines, Inc., 455 U.S. 385, 393 (1982)).
[4] Id. (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 515–16 (2006)).