By: John Alan Doran
The U.S. Supreme Court ruled today that a plaintiff’s failure to properly perfect an EEOC charge is a “prudential” defense to a Title VII claim, which may be waived by the employer’s failure to promptly raise the defense in litigation. Fort Bend County, Texas v. Davis (June 3, 2019).
Davis filed an EEOC charge against Fort Bend County alleging sexual harassment and retaliation. While that charge was pending, Davis attempted to add a religious discrimination claim to her charge by handwriting on her prior EEOC intake questionnaire the word “religion”, and checking the “discharge” and “reasonable accommodation” boxes on that form, but not on the actual EEOC charge. A trial court subsequently entered summary judgment against Davis on the merits of all her claims. The Fifth Circuit partially reversed that ruling, and the case returned to the trial court. It was only then that Fort Bend raised, for the first time, Davis’s failure to claim religious discrimination in her formal EEOC charge. Fort Bend argued that Title VII’s charge-filing procedures are jurisdictional, meaning they are not subject to waiver and can be raised at any stage of the litigation when the plaintiff failed to follow the charge-filing procedures before the lawsuit. The trial court agreed and dismissed the remaining claim. The Fifth Circuit again reversed, holding that Title VII’s charge-filing processes are not jurisdictional and are therefore subject to waiver by the employer. The Supreme Court agreed, holding that the Title VII administrative prerequisites to suit are not jurisdictional, but “prudential.”
Employers frequently seek dismissal of Title VII claims based on a plaintiff’s failure to fully follow Title VII’s charge-filing procedures. The Supreme Court made clear today that this defense must be raised at the outset of litigation or it may be waived. Standing alone, the decision is of limited impact. However, plaintiffs who fail to fully follow the charge-filing procedures will now undoubtedly argue that, if charge-filing procedures are not jurisdictional, they are similarly subject to the “equitable tolling” doctrine, which theoretically excuses plaintiffs from full compliance with the charge-filing process when it is “equitable” to do so. Equitable tolling promotes plaintiff-contrived “dog ate my homework” excuses for failing to follow Title VII’s charge-filing processes. These concocted excuses undermine one of the few employer protections provided in Title VII, while simultaneously undermining the Act’s strong conciliatory purpose. The Court’s decision also fails to explain under what circumstances (or even if) a plaintiff’s non- (or merely partial) compliance with the charge-filing process may be excused by a trial court for “prudential” reasons. To the contrary, today’s decision further fuels litigation over a plaintiff’s failure to comply strictly with Title VII’s charge-filing procedures, while forcing employers to raise any charge-filing defects immediately at the beginning of a lawsuit.