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Filing discrimination claim with EEOC first not jurisdictional

A recent unanimous employment discrimination case out of the U.S. Supreme Court has important takeaways for California employers. Fort Bend County, Texas v. Davis decides an unsettled legal question about Title VII of the Civil Rights Act of 1964, the main federal anti-discrimination law impacting the workplace.

When an employee or job applicant alleges unlawful discrimination under Title VII, the claimant must first file their complaint with the Equal Employment Opportunity Commission, or EEOC, the federal agency that enforces employment discrimination laws. The EEOC may investigate the claim and, if it finds "reasonable cause," has the option to try to get the parties to settle informally, or the agency can file a lawsuit. It may choose to do none of these things, depending on the claim.

Whatever it decides, the EEOC still must send the claimant a right-to-sue notice, which essentially gives the employee permission to file a Title VII suit in court. Most of the time, the EEOC issues a right-to-sue notice to the employee without any investigation. The employee then has 180 days from the date of the right-to-sue notice to file a lawsuit.

What if the claimant does not follow this procedure?

This is the question presented in Fort Bend County, Texas v. Davis. Lois Davis lodged her Title VII claim for retaliation and sexual harassment with the EEOC. She then added religious discrimination to an agency questionnaire, but she did not amend the claim officially. After she got her right-to-sue letter, she alleged all three causes of action in a civil lawsuit, including the religious discrimination claim, to court.

The litigation's path was complex and lengthy, but eventually only the religious discrimination claim remained before the court. The employer-defendant asked the court to throw out the case because Davis did not properly amend the religion-based claim before the EEOC, thereby failing to exhaust her administrative remedies as to that claim.

The question-whether or not that failure stripped a court of jurisdiction, or authority, to hear that claim-wound its way to the Supreme Court, which held that the charge-filing rule was not jurisdictional, so the federal court could hear Davis' remaining claim.

Jurisdiction v. litigation rule

A court must have jurisdiction to lawfully decide a case. This means that the court must have the power to decide disputes concerning the subject of the suit and to entertain the particular parties. Jurisdiction is a matter that cannot be waived. If a court does not have jurisdiction, it cannot decide the case even if both parties want it to. Jurisdiction issues can be raised at any time, but should be raised as early as possible.

The Supreme Court decided that the EEOC claim-filing requirement was not jurisdictional, but instead a "nonjurisdictional claim-processing rule" created to provide structure to the litigation. A nonjurisdictional rule like this is "mandatory," but can be waived if not timely raised.

Here, the Supreme Court said that the employer's delay of five years to raise the issue was too long, thereby waiving its objection based on the employee's failure to file with the EEOC, and allowing Davis' claim to move forward despite its technical deficiency.

This case is a reminder to employers and their counsel in any Title VII lawsuit to immediately assess at the outset of a lawsuit whether administrative remedies with the EEOC have been effectively exhausted. If this issue is missed early on, it may be too late to raise it later in the litigation, as such exhaustion is not a jurisdictional issue.

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