Prepared by Karen Nissen, Esq.
The U.S. Supreme Court issued a ruling on June 3, 2019 which impacts the landscape of defending Title VII employment discrimination cases. In the case of Fort Bend County v. Davis, 2019 U.S. LEXIS 3891 the Supreme Court issued a ruling regarding the requirement in Title VII that employees must exhaust their administrative remedies by filing a Charge of Discrimination against their employer with the EEOC before filing a discrimination lawsuit against the employer. The Supreme Court in a unanimous opinion ruled that the charge filing requirement in Title VII is a procedural obligation, not a jurisdictional requirement. The Court found the Title VII presuit requirement of filing a Charge of Discrimination is a “claim-processing rule” not a jurisdictional requirement.
The Supreme Court ruled that the pre suit filing of a Charge of Discrimination rule may be mandatory without being jurisdictional which rule can be enforced if it is properly raised but the benefit of the rule may be forfeited if the party waits to raise the rule as a defense.
Employers must be sure that when a Title VII suit is filed against them to immediately determine if the employee filed the mandatory presuit Charge of Discrimination in order to ensure the failure to do so is timely raised as an affirmative defense in a Title VII lawsuit. If the failure to file a presuit Charge of Discrimination is not raised at the beginning of the lawsuit, an employer may waive this affirmative defense. Employers should continue to file Motions to Dismiss if either a Charge was not filed pre suit or if the specific discrimination claim was not included in the properly filed Charge and include the lack of following Title VII’s mandatory pre-suit requirement as an affirmative defense.