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On June 3, 2019, the Supreme Court of the United States resolved an issue that has split the lower courts by holding that an employee’s failure to exhaust administrative remedies before the EEOC does not present a jurisdictional defect that would bar federal courts from hearing a claim of discrimination or retaliation. Instead, it amounts only to an affirmative defense that an employer can waive by not timely raising it.

The Relevant Facts

Plaintiff Lois Davis (Davis) worked for Fort Bend County, Texas (Fort Bend). Davis submitted an internal complaint alleging that Fort Bend’s Information Technology Director had sexually harassed and assaulted her. Davis later filed an intake questionnaire and then a formal charge of discrimination with the EEOC.

After filing the formal charge, Davis asserted that her direct supervisor began retaliating against her. Specifically, Davis alleged that her supervisor fired her for not working on a Sunday despite having told him that she could not work that day for religious reasons and offered to find a substitute. After her termination, Davis amended her intake questionnaire by writing “religion” in the “Employment Harms or Actions” section, but she failed to amend her formal charge form to allege religious discrimination.

After receiving a right-to-sue notice from the EEOC, Davis filed a lawsuit against Fort Bend alleging religious discrimination and retaliation. After the case had been pending for several years, Fort Bend asserted, as an affirmative defense, that the court lacked jurisdiction to hear her claim of religious discrimination because Davis had failed to amend her formal EEOC charge to reflect this claim.

The Court Resolves A Sharply Divided Appellate Issue

This case gave the Supreme Court the opportunity to resolve an issue that has split the lower courts, namely, whether filing a charge with the EEOC was “jurisdictional” in nature and, therefore, could be raised as a defense at any time, or was a “claim-processing rule” that could be waived by not timely asserting it.

The Supreme Court unanimously ruled that Title VII’s charge-filing requirement is not jurisdictional and, as a result, an employee’s failure to fully exhaust administrative remedies before the EEOC does not bar the courts from hearing such claims. Rather, the question of whether an employee adequately exhausted his or her administrative remedies before the EEOC is an affirmative defense that can be waived if the employer does not timely assert it.

Employer Takeaways

Employers must carefully consider the claims asserted before the EEOC and those asserted in court to ensure that the claims asserted in court have been adequately raised before the EEOC. If there is a discrepancy, employers must raise the failure to exhaust administrative remedies with their initial response to the complaint to ensure that they do not waive that defense.