U.S. Supreme Court Finds Charge Filing Requirement to be Procedural, Not Jurisdictional

By Fiona W. Ong - Shawe Rosenthal LLP

June 3, 2019

The United States Supreme Court has ruled that the requirement to file a charge of discrimination before bringing a discrimination lawsuit is a procedural requirement that may be waived, as opposed to a jurisdictional one that would deprive a court of the ability to even hear the case.

The Charge-Filing Prerequisite: Before bringing a discrimination lawsuit under Title VII, the complainant must file a timely charge of discrimination with the Equal Employment Opportunity Commission (or a state or local fair employment practices agency with which the EEOC has a work-sharing agreement). The EEOC then investigates the charge. If the EEOC finds discrimination, it may attempt to resolve the matter through conciliation or may bring suit on the complainant’s behalf. In addition, if the EEOC chooses not to sue or finds no discrimination, it must issue a “right-to-sue” notice to the complainant, who may then file suit against the employer.

The issue before the Supreme Court was whether this charge-filing prerequisite is jurisdictional in nature, meaning that it controls whether or not a court may exercise authority over the matter, or whether it is a claims-processing rule, only setting forth certain procedural steps that must be enforced only if the employer timely objects to a failure to follow the procedures.

Background of the Case: In Fort Bend County v. Davis, the employee filed a charge alleging sexual harassment and retaliation for reporting the harassment. She was subsequently terminated for failing to show up for work due to a church event, but never formally amended her charge to include any allegation of religious discrimination. She later sued, claiming religious discrimination and retaliation for reporting sexual harassment.

After years of litigation, the employer raised for the first time the argument that the trial court lacked jurisdiction over the religious discrimination claim because the employee had failed to include it in her charge. The trial court agreed, but the U.S. Court of Appeals for the Fifth Circuit reversed the trial court. The Fifth Circuit held that the requirement is not jurisdictional and that the employer had forfeited the enforcement of the requirement because it had waited too long to raise the objection.

The Supreme Court’s Ruling: A unanimous Court found that the charge-filing prerequisite is a non-jurisdictional claims-processing rule. The Court noted that the charge-filing provisions of Title VII are separate from the jurisdiction provisions that grant courts the authority to hear Title VII cases. The charge-filing provisions set forth certain mandatory procedural obligations for the complainant, which may be waived by the employer, as happened in the case at issue.

Practical Impact: This case emphasizes that, in defending a discrimination lawsuit, it is critically important to determine whether the claims were properly asserted in an EEOC charge and, if not, to raise promptly the defense that the charge-filing prerequisite was not met.