The defense is most likely to be an issue where a plaintiff alleges in a court complaint that he or she was subjected to retaliation after filing an administrative charge alleging discrimination.

In a unanimous decision issued on June 3, 2019, in Fort Bend County v. Davis, the Supreme Court of the United States held that an employment discrimination plaintiff’s failure to exhaust administrative remedies is not a “jurisdictional” prerequisite to filing suit and, therefore, federal courts may be able to hear discrimination claims under Title VII even if workers fail to raise those claims with the Equal Employment Opportunity Commission (EEOC). The Court’s ruling puts employers on notice that failing to promptly assert the affirmative defense of failure to exhaust administrative remedies in a job bias lawsuit may result in the employer waiving the ability to assert the defense altogether.

Administrative Exhaustion Requirement in Employment Discrimination and Retaliation Cases

Under most federal laws prohibiting employment discrimination and retaliation―such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act and analogous state laws―plaintiffs are required to file an administrative charge alleging discrimination or retaliation with the EEOC before they may file a lawsuit in federal or state court alleging such discrimination or retaliation. Many state civil rights statutes contain similar administrative exhaustion requirements for employment claims. If the plaintiff has not “exhausted” those administrative remedies, the lawsuit may be subject to dismissal as a result.

Prior to the Supreme Court’s decision in Fort Bend County v. Davis, the U.S. Courts of Appeals were split on whether this requirement is a jurisdictional requirement (i.e. an issue that may be raised at any point and cannot be waived) or merely a prerequisite to filing a lawsuit and thus subject to waiver.

The Underlying Charge and Lawsuit in Fort Bend County v. Davis

Lois Davis filed a charge with the Texas Workforce Commission (the “Commission”) alleging sexual harassment and retaliation against her employer, Fort Bend County. While the charge was pending, Davis informed her supervisor that she could not work on a particular Sunday due to a “previous religious commitment,” and her supervisor did not approve the absence. Davis did not report to work that Sunday and, as a result, the County terminated her employment.

Following her termination, Davis submitted to the Commission an “intake questionnaire” in which she hand wrote the word “religion” next to the checklist labeled “Employment Harms or Action,” but did not amend her original charge of discrimination. The Commission later issued Davis a right-to-sue letter, and she filed a lawsuit in federal district court alleging retaliation and religious discrimination under Title VII. The district court granted summary judgment in favor of the County on all claims. Davis appealed.

On appeal, the Fifth Circuit affirmed the lower court as to the retaliation claim, but reversed dismissal of the religious discrimination claim and remanded that claim to the district court for further proceedings. On remand, the County argued for the first time that Davis had failed to exhaust her administrative remedies on the religious discrimination claim, as required by Title VII. The district court agreed, finding that administrative exhaustion is a jurisdictional prerequisite in Title VII cases and that the County did not waive the defense by failing to assert it in the initial court proceeding. Davis’ religious discrimination claim again was dismissed.

On the second appeal, the Firth Circuit sided with Davis and held that the exhaustion requirement is not a jurisdictional bar to suit. The court noted that failure to exhaust can foreclose a Title VII suit, but it is an affirmative defense 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 administrative exhaustion requirement is not a jurisdictional prerequisite to filing a federal lawsuit under Title VII. Therefore, employers bear the burden of asserting, as an affirmative defense, that the plaintiff has not exhausted his or her administrative remedies through the EEOC or equivalent state agency. Employers who fail to timely raise an exhaustion defense will forfeit the right to raise the defense later.

What This Means for Employers

The Fort Bend decision underscores the need for employers faced with an employment discrimination and/or retaliation lawsuit to closely compare the claims asserted in an administrative charge with those asserted in federal court, and to promptly raise the affirmative defense of failure to exhaust administrative remedies when responding to the court complaint. The defense is most likely to be an issue where a plaintiff alleges in a court complaint that he or she was subjected to retaliation after filing an administrative charge alleging discrimination.

Employers facing litigation involving state and/or local nondiscrimination laws, many of which contain exhaustion requirements that mirror Title VII and are interpreted using the same framework as Title VII claims, must also be attuned to this issue. It is worth noting, however, that some state and local anti-discrimination laws do not contain an administrative exhaustion requirement, and plaintiffs in those jurisdictions often file suit without bothering to assert federal claims that require them to exhaust their administrative remedies.

Accordingly, it is essential for employers hit with job bias claims to promptly analyze, with the assistance of experienced employment counsel, whether the lawsuit raises issues that were not addressed in the plaintiff’s administrative charge. Employers who assert an exhaustion defense too late will end up litigating a job bias suit that could have been avoided.