On June 3, 2019, the Supreme Court issued a unanimous decision holding that Title VII’s administrative exhaustion requirement is not a jurisdictional bar to filing a lawsuit in court. The lawsuit involved an individual, Lois M. Davis (Davis), who filed a charge of sexual harassment and retaliation against her employer, Fort Bend County, Texas, with the Equal Employment Opportunity Commission (EEOC). While her sexual harassment and retaliation charge was pending, she alleges that her employer tried to force her to work on Sunday despite her religion-based objections and then terminated her employment when she did not show up for work. After the termination, Davis wrote “religion” on her original intake questionnaire and checked boxes for “discharge” and “reasonable accommodation” on the form, but did not make any substantive changes to the actual charge document.

Fort Bend County argued, successfully, at the district court that Davis’ religion-based discrimination claims were barred because she did not perfect filing a religious discrimination charge with the EEOC, thus failing to meet Title VII’s administrative exhaustion requirements as to her religious discrimination claim. The Fifth Circuit reversed the district court’s dismissal of Davis’ religious discrimination claim and the Supreme Court affirmed the Fifth Circuit’s decision. In reaching its decision, the Supreme Court noted that exhaustion requirements are not prerequisites to a workplace bias lawsuit but, instead, are waivable claim-processing rules.

Justice Ginsburg authored the Court’s opinion and stated, “a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.” The Court went on to note that while the failure to exhaust requirement is mandatory, parties waive a failure to exhaust challenge if they do not timely raise it. Specifically, the court held that “[a] claim-processing rule may be ‘mandatory’ in the sense that a court must enforce the rule if a party ‘properly raises’ it . . . [b]ut an objection [based on the rule] may be forfeited ‘if the party asserting the rule waits too long to raise the point.’” [emphasis added]. The opinion did not elaborate on how long is “too long” but Fort Bend County waited nearly five years before seeking its dismissal, which was clearly “too long” according to the Court.

In some regards, the Court’s ruling raises more questions than it answers. Employers in workplace bias claims do not always receive notification from the EEOC—or state equivalent agency—that a claimant filed a charge against it. Sometimes, the EEOC issues a “right to sue letter” the same day it receives the charge (raising questions that belong in a different post). In other words, the administrative process can be sufficiently unreliable that, at times, employers may not know it has even taken place, let alone received sufficient notice of updates to a pending charge.

The answer to all of this is a simple one. When an employer is served with a discrimination lawsuit, at a minimum, it should respond by timely raising exhaustion, statute of limitations, and similar affirmative or other defenses that may apply. While it is not always comfortable to raise these defenses without knowing for sure whether they apply, it is a better option than not raising them (or raising them too late in the lawsuit) and potentially waiving certain defenses. As the Supreme Court noted, the ruling is not an incentive for plaintiffs to “skirt” claim-processing requirements. To the contrary, “[a] Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.” Fort Bend County, Texas v. Davis, No. 18-525, https://www.supremecourt.gov/opinions/18pdf/18-525_m6hn.pdf.