Employers Can No Longer Wait To Assert Affirmative Defense of Failure to Exhaust Administrative Remedies

June 6, 2019

By: Morey Raiskin

In Fort Bend County v. Davis, the United States Supreme Court unanimously ruled Monday, June 3, 2019, that the requirement that a Title VII plaintiff actually timely file a Charge of Discrimination prior to commencing a federal lawsuit is a “procedural prerequisite” but not a disqualifying “jurisdictional requirement.”  Simply stated, it is no longer absolutely necessary that the EEOC investigate or attempt to resolve a claim before a lawsuit under Title VII can be brought or maintained to its conclusion.  Rather, the fact that a plaintiff failed to exhaust his or her administrative remedies by timely filing a Charge of Discrimination is a defense that can be waived if not timely asserted.

In resolving a split which had existed among the various U.S. Circuit Courts of Appeals, the unanimous Supreme Court concluded that while an allegedly aggrieved plaintiff should first file a Charge of Discrimination with the EEOC or, in Florida, with the Florida Commission on Human Relations, before filing a lawsuit alleging the violation of Title VII (the federal statute which, among other things, prohibits discrimination based upon race, color, religion, sex, or national origin), it is no longer an absolute requirement.  Instead, if a plaintiff does not first file a Charge of Discrimination, and if an employer does not raise this failure as a defense at the outset of the lawsuit, the defense will be waived, and the Court can adjudicate the claim.

Until Monday, federal appellate courts around the country disagreed about whether an employer could raise the plaintiff’s failure to exhaust the administrative requirement of first filing a Charge of Discrimination (or including all “theories” of discrimination within a Charge) at any time during the pendency of the corresponding lawsuit, or if the defense had to be asserted at the outset or risk being waived. Monday’s 9-0 decision by the U.S. Supreme Court resolves that question in favor of plaintiffs and cautions employers “promptly to raise an objection that may rid them of the lawsuit filed against them” or risk waiving the ability to defend on this basis.

Disappointingly absent from the Court’s plaintiff-friendly decision, however, is any guidance whatsoever regarding when the defense of failure to exhaust administrative remedies by failing to file a Charge of Discrimination must be asserted before it will be deemed waived by the Court. Thus, until further litigation resolves that issue, prudent employers defending federal lawsuits alleging violations of Title VII should assert a plaintiff’s failure to timely file a Charge of Discrimination (e.g., exhaust administrative remedies) at the outset of the lawsuit’s defense, or understand that this defense could be waived.