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Updated: U.S. Supreme Court Limits An Employer’s Procedural Defense to Job Discrimination Suits


Yesterday, the U.S. Supreme Court released its decision in the Fort Bend County v. Davis case, which addressed whether an employment discrimination claimant’s requirement that they present their claim to the Equal Employment Opportunity Commission (“EEOC”) before filing suit is a jurisdictional prerequisite or a claim processing rule.  The Fourth, Ninth, and Eleventh Circuits have held that the exhaustion requirement to an employment discrimination claimant is jurisdictional, thus courts lack subject matter jurisdiction over claims that were never presented to the EEOC.  Eight Circuits go the other way, however, characterizing the exhaustion requirement as a claim processing rule that is subject to waiver, forfeiture, or other equitable defenses.

At the District Court level, after years of litigation, Fort Bend for the first time raised the defense that since Davis did not properly present her religious discrimination suit to the EEOC before filing suit, her case should be dismissed.  Finding the presentment claim was jurisdictional in nature, the District Court dismissed the case.  On appeal, the Fifth Circuit reversed, finding that since the presentment claim was properly characterized as a claim processing rule, Fort Bend’s failure to timely assert it meant that it was waived.  Fort Bend subsequently appealed to the U.S. Supreme Court in which oral arguments were held in late April.

In a unanimous ruling, the Court upheld the Fifth Circuit’s decision, finding that the requirement to file charges with the EEOC before filing suit was not a jurisdictional issue.  Writing for the Court, Justice Ginsburg noted that an employer can lose the ability to get a discrimination claim dismissed, based on a claimant’s failure to exhaust his or her claim with an agency, if the employer does not timely raise that defense.  As a result, the Court’s unanimous decision makes clear that the burden is on employers to promptly raise their objections to get a suit dismissed.  However, it is important to remember that the Court did not remove a claimant’s obligation to still exhaust their claim with an agency before Suit us filed.


For a copy of the U.S. Supreme Court’s opinion:  https://www.supremecourt.gov/opinions/18pdf/18-525_m6hn.pdf

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