Hunton Employment & Labor Perspectives

The United States Supreme Court has agreed to resolve a growing split of authority among lower federal circuit courts regarding the requirement under Title VII of the Civil Rights Act of 1964 (“Title VII”) that individuals must file a charge of discrimination with the EEOC before bringing Title VII claims against their employer. Specifically, the Supreme Court is set to decide the following issue: “Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.”

The case—Fort Bend County v. Lois M. Davis—involves an appeal to the Fifth Circuit of a decision by a district court in the Southern District of Texas where the district court held that a plaintiff’s failure to file a charge with the EEOC before a lawsuit was not a jurisdictional requirement that prohibited the court from hearing the case. Rather, the district court determined that the administrative exhaustion requirement under Title VII is a claims-processing rule that can be waived by an employer if the issue is not timely asserted. The Fifth Circuit upheld the decision.

The Fifth Circuit’s ruling in this case is consistent with the majority of other federal circuit courts’ interpretation of the administrative exhaustion requirements under Title VII.  The First, Second, Third, Sixth, Seventh, Tenth, and D.C. Circuit Courts have all held that the administrative exhaustion requirements under Title VII are not jurisdictional, but rather an affirmative defense that can be waived by an employer if not timely raised. On the other side of the circuit split, the Forth, Ninth, and Eleventh Circuit Courts have all held that the administrative exhaustion requirement is jurisdictional, and that a federal district court has no authority to adjudicate Title VII claims if the plaintiff has not first filed a charge with the EEOC.

We will continue to monitor any developments in this case, and will provide an update when the Supreme Court issues its ruling resolving this circuit split.