The U.S. Supreme Court recently agreed to consider whether federal courts have the authority to waive a Title VII plaintiff’s failure to exhaust administrative remedies before the EEOC, or state equivalent, before filing a complaint in federal court. Under Title VII of the Civil Rights Act of 1964, an individual who brings a claim for employment discrimination must first attempt to resolve the claim with the EEOC before filing a lawsuit in federal court. Generally, this rule is designed to promote order in federal courts by giving the EEOC an opportunity to vet claims of employment discrimination before they become the subject of federal court litigation. Eight federal appeals courts, however, have found the failure to raise an issue in an administrative charge to be a waivable affirmative defense, which the employer must timely raise and for which the employer bears the burden of proof. If the employer does not timely raise the affirmative defense, the court will consider it waived and will permit the factfinder to consider the issue, even though the plaintiff failed to exhaust administrative remedies. Conversely, three federal appeals courts find this requirement to be a jurisdictional prerequisite, permitting the employer to raise the plaintiff’s failure to exhaust administrative remedies at any time during the litigation and dismissing issues not brought before the EEOC. The Eighth Circuit is the only federal appeals court that has not issued a decision on this issue.

The Supreme Court will primarily determine which party bears the burden of raising and proving whether the complaining party has exhausted its administrative remedies through the EEOC. As many of the nation’s employers are currently within a “waivable affirmative defense” jurisdiction, a decision from the Supreme Court to follow this majority rule would simply perpetuate the need for employers to remain vigilant in understanding the claims brought against them before the EEOC compared to those brought in federal court, and to raise the affirmative defense when necessary. On the other hand, if the Court determines the exhaustion requirement is a jurisdictional prerequisite to filing a federal lawsuit under Title VII, employers could then seek dismissal of any claim not brought before the EEOC or state equivalent, regardless of how far the issue is litigated in federal court.

The case bringing this issue before the Court is Fort Bend County v. Davis. FordHarrison will continue to monitor developments in this case, and will provide more information when the Supreme Court issues its ruling.