On June 3, 2019, the U.S. Supreme Court unanimously held that failure of an employee to file a discrimination claim with the EEOC prior to bringing a discrimination lawsuit does not deprive a court of jurisdiction over the suit. That means that an employer can waive the defense to a discrimination claim based on failure to timely file with the EEOC. Consequently, employers should raise the defense as early as possible in the litigation.
Title VII of the Civil Rights Act of 1964—a federal anti-discrimination law—requires employees to file discrimination and retaliation claims with the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit against their employers regarding those claims. Title VII further requires that such claims be filed within a specified period of time. So, what happens if an employee fails to follow the rules? The federal appellate courts split on the issue. Some ruled that it was jurisdictional and so could be raised at any time in the litigation. Other courts held that the rule was merely procedural and so could be waived if not raised early in the litigation.
In Fort Bend County v. Davis, the Supreme Court settled the split. It held that the failure-to-file defense was not jurisdictional. That is, the failure to file a claim with the EEOC did not deprive a court of constitutional authority to hear the claim. Rather, the requirement that an employee filed a claim with the EEOC before proceeding to court is a claims-processing rule. This distinction is significant because jurisdictional defenses can be raised at any time in the litigation and cannot be waived. Failure to follow a claims-processing rule—a non-jurisdictional failure—can be waived if not timely raised. The bottom line? Employers need to raise the failure-to-file defense at the earliest possible point in the litigation, either in a motion to dismiss or in an answer. Otherwise, the defense may be deemed waived.