US Supreme Court: Failure to file EEOC charge not always bar to lawsuit

Federal law requires filing a job discrimination claim with the EEOC before filing a lawsuit, but the high court now says failure to file the EEOC charge is not jurisdictional.

Title VII is the main federal anti-discrimination in employment law. Title VII requires a person who experienced discrimination at work or in the job application process to file a claim with the Equal Employment Opportunity Commission, or EEOC, before bringing a lawsuit in court. Federal courts have been split on whether this claim-processing rule is jurisdictionally fatal to the right to file the lawsuit.

The EEOC is the federal government agency responsible for investigating and enforcing Title VII.

Procedural, not jurisdictional

The U.S. Supreme Court announced on June 3, 2019, that the EEOC filing requirement is not jurisdictional, but rather a procedural rule that the court can waive if the employer does not raise it in a timely fashion. This means that if a claimant never filed with the EEOC or tried to, but did something wrong making the filing unsuccessful, the court could dismiss the suit for failing to exhaust administrative remedies (meaning failing to seek legal recourse before the agency first), but only if the employer objects in a reasonable time.

In Fort Bend County, Texas, v. Davis, employee Davis filed a charge of sexual harassment and retaliation under Title VII with the EEOC. She later added religion as another claim, but she wrote it on an EEOC questionnaire, rather than properly amending her formal charge.

After 180 days from the claim filing, the EEOC issues a right-to-sue notice that gives permission to file the complaint in court as a lawsuit. Davis got her notice and filed suit in federal court. The litigation took a complicated path and after five years, only the religious discrimination part of the claim survived.

At this late date, the employer asked the court to dismiss the suit because Davis had not exhausted her administrative remedies because she had not properly filed the religious part of the claim with the agency.

Jurisdiction cannot be waived

The court held that the agency-filing requirement was not jurisdictional. Jurisdiction is the power that a court must have to decide a particular kind of case for a particular type of party. Without jurisdiction, a court literally does not have legal power to decide a controversy. Even if the parties and the judge all want the court to decide, it cannot. In other words, jurisdiction cannot be waived.

The defendant can raise the issue of jurisdiction at any time, even tardily, because the power to hear the case either exists or it does not. Even if the discovery of lack of jurisdiction is late, it is still potentially fatal to the power of the court to decide the case.

The Davis court said that the EEOC claim-processing rule is not jurisdictional, but rather a procedural rule. As such, if the defendant timely raises the issue, the court will dismiss, but it is raised late, the court can decide that the defendant waived its right to raise it and refuse to dismiss.

That is what happened in Davis. The court said five years into the litigation was too late to raise it. The question that remains for another day is how late is too late. The court did not give an exact deadline.

We would advise to never skip the EEOC step.

Seek legal advice ASAP

In Michigan the laws and procedures for bringing discrimination complaints sit at a complex intersection of state and federal laws, so an employee should consult an experienced employment lawyer as early as possible to understand their legal options and to meet deadlines.

The lawyers at Miller Cohen, PLC, with offices in Allen Park, Warren, Dearborn and Detroit represent job applicants and employees in southeast Michigan in agency complaints and lawsuits for illegal employment discrimination and employer retaliation.