Supreme Court Expected to Provide Clarity on Exhaustion of Remedies Requirement
The U.S. Supreme Court will consider whether federal courts have the power to review claims brought under Title VII of the 1964 Civil Rights Act (“Title VII”) if the plaintiff did not first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or an equivalent state agency.FN1
Before seeking relief in the courts, Title VII requires plaintiffs to file a charge of discrimination within 180 days of the alleged discrimination, or 300 days where state agencies also enforce anti-discrimination laws.FN2 The federal courts of appeals are divided on the issue. Most federal courts, including the Tenth Circuit Court of Appeals based on Denver, consider the charge-filing requirement to be a “claim-processing rule” that can be waived or forfeited.FN3 Employers in these states may raise an affirmative defense about a claimant’s failure to file an EEOC charge, but the employee’s claim is not automatically foreclosed by failure to timely file a charge. Three circuits have held that filing a charge of discrimination is a non-waivable jurisdiction prerequisite to filing an employment discrimination lawsuit,FN4 meaning courts do not have the power to review Title VII claims if the employees did not timely file an EEOC charge on a particular claim.
A decision by the Supreme Court on this issue may has significant practical implications for employers. A decision holding the exhaustion requirement is not jurisdictional would undermine Title VII’s important policy goals of giving employers fair notice of alleged claims and giving the EEOC a chance to investigate and help the parties reach early, informal resolution out of court. It would also require employers to be more vigilant in asserting a defense tied to an employee’s failure to file the appropriate charge. We will alert you when the Supreme Court issues its decision.
FN1: Davis v. Fort Bend County, 893 F.3d 300 (5th Cir. 2018), cert granted sub nom. Fort Bend Cty., Tex. V. Davis, No. 18-525, 2019 WL 166880 (U.S. Jan. 11, 2019).
FN2: Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. The exhaustion requirement is found at 42 U.S.C. § 2000e-5(e)(1). See also https://www.eeoc.gov/employees/timeliness.cfm.
FN3: Lincoln v. BNSF Railway Co., 900 F.3d 1166, 1185, 1185 n.10 (10th Circ. 2018) (holding that a plaintiff’s failure to file an EEOC charge merely permits the employer to raise an affirmative defense but does not bar a federal court from assuming jurisdiction over the claim, and listing cases). For the Rocky Mountain Employer blog about the Tenth Circuit decision, see http://www.rockymountainemployersblog.com/blog/2018/9/6/employers-in-colorado-and-other-western-states-must-litigate-untimely-discrimination-claims-under-recent-decision
FN4: The Fourth (covering Maryland, North Carolina, South Carolina, Virginia, and West Virginia), Ninth (covering Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, and Washington), and Eleventh (covering Alabama, Florida, and Georgia) Circuit Courts of Appeal have held that administrative exhaustion is a jurisdictional requirement. See Jones v. Calvert Grp., Ltd., 531 F.3d 297, 300 (4th Cir. 2009); Brown v. Snow, 440 F.3d 1259, 1263 (11th Cir. 2006); Salas v. Indep. Elec. Contractors Inc., 603 F. App’x 607, 608 (9th Cir. 2015).