This past Monday the U.S. Supreme Court held in Fort Bend County v. Davis that the filing of a Charge with the EEOC, or a similar state deferral agency, is not a jurisdictional prescription to the filing of a lawsuit under Title VII.
This does not mean that a plaintiff does not need to file a Charge before filing suit. Rather, it means that if a plaintiff fails to do so, the defendant must object to this failure in a timely manner. In the past, defendants could argue that the failure to file a Charge was a jurisdictional prerequisite to filing suit at any time during the litigation and ask that the Title VII claims be thrown out.
Supreme Court’s Decision
In the Davis case, the Court held that because the Defendant did not raise the argument that the Plaintiff had not timely filed a Charge until years into the litigation, the Defendant had waived any objection to the Plaintiff’s failure to exhaust administrative remedies. Unfortunately, the Court did not indicate a deadline by which such a defense must be raised.
How Does This Decision Affect Employers?
Simply put, employers may still object to a plaintiff’s failure to timely file a Charge when they assert a Title VII cause of action. The difference is that now an employer must raise this affirmative defense early in the litigation. Since the Supreme Court did not tell us how early, prudent employers will raise the argument that the plaintiff has failed to file a Charge in their first responsive pleadings.
This decision should not impact the day-to-day lives of HR professionals. Most good defense counsel will immediately check to see if a plaintiff has timely filed a Charge as soon as they receive a Title VII suit. And, if the Charge has not been properly filed, defense counsel immediately asserts the defense.
As always, don’t hesitate to call me directly if you have questions concerning this or any other HR-related issue.