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Supreme Court holds ‘raise it or waive it’ when an employee fails to exhaust administrative remedies
By T. Christopher Bailey on June 6, 2019 at 2:00 PM

United States Supreme CourtIn a unanimous decision, the U.S. Supreme Court held that an employee’s failure to exhaust administrative remedies is not a jurisdictional prerequisite to filing a lawsuit, rather it is a procedural requirement that could be waived by the employer’s failure to timely raise the issue.

In Fort Bend County, Texas v. Davis, --- S.Ct. ---- (U.S. June 3, 2019) the plaintiff, Davis, filed a charge of discrimination alleging sex discrimination and retaliation. While that charge was pending, Davis was told to report to work on a Sunday. When Davis refused due to a prior church commitment, her employment was terminated. Intending to amend her earlier charge, Davis submitted an EEOC Intake Questionnaire on which she handwrote “religion” under “Harms or Actions” and checked the boxes for “discharge” and “reasonable accommodation.” However, Davis made no change to her formal charge of discrimination document to allege discrimination on the basis of her religion.

In January 2012, Davis filed suit claiming retaliation for reporting sexual harassment and religious discrimination. A year and a half later, the district court granted Fort Bend’s motion for summary judgment; however, in 2014, the appellate court reversed the decision regarding Davis’ religious discrimination claim. After the Supreme Court denied Fort Bend’s petition for certiorari, the case returned to the district court for adjudication of Davis’ religious discrimination claim.

Upon its return to district court, Fort Bend filed a motion to dismiss Davis’ religious discrimination claim arguing that the district court lacked jurisdiction to hear the claim because Davis failed to exhaust her administrative remedies by failing to include her religious discrimination claim in her charge of discrimination. The district court agreed and dismissed Davis’ claim. Davis v. Fort Bend County, Texas, 2016 WL 4479527 (S.D. Tex., Aug. 24, 2016)

On appeal, the Fifth Circuit Court of Appeals reversed the district court’s decision, concluding that the charge-filing requirement was a “prudential prerequisite to suit” but was not jurisdictional. Because Fort Bend had waited almost five years, and after a full round of appeals to raise the issue, it had waived its right to do so at this stage of litigation. Davis v. Fort Bend County, Texas, 893 F.3d 300 (5th Cir. 2018). Fort Bend appealed the decision to the Supreme Court, which accepted the appeal.

The Supreme Court agreed with the Fifth Circuit. Explaining the distinction between jurisdictional prescriptions and non-jurisdictional claim-processing rules, the court explained that a claim-processing rule may be “mandatory” in that a court must enforce the rule if properly raised, but that even a mandatory rule may be forfeited if a party waits too long to assert it. In contrast, a jurisdictional requirement may be raised at any time during litigation. Ultimately, the Supreme Court concluded that the EEOC charge requirement fit into the category of a claim-processing rule. The Supreme Court affirmed the Fifth Circuit and sent the case back to the district court for further proceedings.

What does the Supreme Court’s decision mean for employers?

From an employer’s perspective, the Supreme Court’s decision has little practical effect. An employee still must file a charge of discrimination with the EEOC (or similar state/local agency) before filing a lawsuit or face the prospect of having the lawsuit dismissed. Attorneys representing employers, however, should be very careful to compare the allegations contained in the plaintiff’s charge of discrimination and those contained in a lawsuit. Should the employee fail to file a charge, or fail to raise specific allegations within a charge, the burden is on the employer to raise the issue as soon as practicable (i.e., in as an affirmative defense in an answer to the complaint or in a motion to dismiss) or risk waiving the defense.

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