The Importance of Promptly Asserting Administrative Defenses in Employment Discrimination Lawsuits

Under Title VII of the Civil Rights Act, an employee must file a charge of discrimination with the EEOC or applicable state or local agency before filing a lawsuit. The EEOC notifies the employer, investigates the claims, and attempts to mediate the dispute before legal action is taken. The EEOC then issues a right-to-sue letter that allows the plaintiff to file suit against the employer.

However, the Supreme Court recently held that the requirement to file a charge of discrimination with the EEOC is not a jurisdictional prerequisite to a lawsuit under Title VII. As a result, employers must now raise a defense of failure to exhaust administrative remedies in a timely manner, or their defense can be waived.

This post will examine the Supreme Court case that led to this decision, then discuss the practical implications and ways employers can guard against damages under this new judicial precedent.

Fort Bend County v. Davis

Lois Davis, an employee of Fort Bend County, Texas, filed a charge of workplace sexual harassment and retaliation with the Texas Workforce Commission. While the charge was pending, Davis informed her supervisor that she could not work on a particular Sunday because of a prior religious commitment, but her supervisor did not approve the absence. Davis did not report to work that Sunday and the County terminated her employment as a result.

Davis then submitted an “intake questionnaire” to the Commission, in which she hand-wrote the word “religion” next to the checklist labeled “Employment Harms or Action.” She did not amend her original charge of sexual harassment. The Commission issued Davis a right-to-sue letter, and she filed suit in a federal district court for retaliation and religious discrimination under Title VII.

The case progressed through years of litigation and appeals. The district court granted summary judgment for the County; the Fifth Circuit Court of Appeals affirmed the retaliation claim but reversed the religious discrimination claim.

When only the religious discrimination claim remained, the County moved to dismiss Davis’s complaint. For the first time, the County argued that Davis failed to exhaust her administrative remedies because she did not include the religious discrimination claim in her formal EEOC complaint as required by Title VII. The district court dismissed the case on the basis that administrative exhaustion is a jurisdictional prerequisite in Title VII cases.

On appeal, however, the Fifth Circuit sided with Davis and held that the exhaustion requirement is an affirmative request that must be pleaded, and the County failed to do so in a timely fashion.

The Supreme Court affirmed the Fifth Circuit, holding that the County’s delay had waived any objection to the employee’s failure to exhaust administrative remedies. However, the Supreme Court did not specify a deadline by which the defense must be raised, instead holding that because it was not raised until years into the litigation, after an entire round of appeals, the defense opportunity was forfeited.

What This Means for Employers

As a result of this decision, employers facing litigation involving nondiscrimination laws must pay careful attention to the claims filed in an administrative charge and compare those claims with those asserted in federal court. If a discrepancy exists between administrative and legal charges, employers must promptly raise the affirmative defense, pointing out the plaintiff’s failure to exhaust administrative remedies.

The Supreme Court did not remove the Title VII requirement to file an EEOC charge, and many state and local nondiscrimination laws contain the same filing requirements as Title VII. Thus, if the defense is raised in a timely manner, employers can still seek a dismissal of most Title VII claims on the basis of failure to exhaust administrative remedies.

Be aware, however, that some state and local nondiscrimination laws do not contain an administrative exhaustion requirement, so plaintiffs in those jurisdictions often file suit without asserting federal claims that would require them to exhaust administrative remedies. Also, some federal claims, like FMLA, also do not require administrative remedies first.

Employers who wait too long to assert an administrative exhaustion defense will forfeit that defense and be forced to litigate a discrimination suit that could have been avoided.

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Featured Image by Rebecca Sidebotham.