- An employee's failure to file a discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC) is not fatal to his or her lawsuit if the employer declines to challenge the failure in a timely fashion, the U.S. Supreme Court held June 3 (Fort Bend County v. Davis, No. 18-525 (U.S. Jun. 3, 2019)).
- Title VII of the Civil Rights Act of 1964 instructs workers to file an EEOC charge first, to allow for conciliation or for the commission to file suit. An employer can use a worker's failure to do so as a defense, but forfeits that ability if it waits too long, the High Court said.
- "We hold that Title VII's charge-filing instruction is not jurisdictional," the Court wrote in a unanimous opinion. "Prerequisites to suit like Title VII's charge-filing instruction are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play."
While the ruling may not affect HR's typical day-to-day work, it has far-reaching implications. "Employers take heed: Unless timely raised, you will forfeit the defense of failure to exhaust administrative remedies in response to a Title VII claim," JoLynn Markison, a partner at Dorsey & Whitney told HR Dive via email.
"Unlike jurisdictional defenses, you may not raise the defense of failure to exhaust 'at any point in the litigation,' nor must a court consider it sua sponte. The onus is on you to timely assert a plaintiff's failure to meet Title VII's charge-filing requirement, lest you waive that defense," she continued.
While many circuit courts already treated the EEOC requirement this way, Ford Bend still represents a major shift, Markison said. "[T]he Supreme Court's holding significantly changes how courts must treat the defense of failure to exhaust. No longer will it be viewed as a jurisdictional bar. Rather, failure to timely raise the defense may result in waiver."