Recently, in Fort Bend County, Texas v. Davis, the U.S. Supreme Court was faced with a jurisdictional question: If a plaintiff fails to exhaust her remedies by first filing an Equal Employment Opportunity Commission (“EEOC”) claim, is she jurisdictionally barred from suing her employer for discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”)? In typical lawyerly fashion, the Supreme Court drew a distinction between “mandatory” and “jurisdictional” and answered with an “it depends.”  This blog addresses the importance of employers raising objections early when defending a case to avoid losing time and money.
When an employee seeks to sue her employer for discrimination, Title VII instructs her to file a claim with the EEOC first.  After receiving the claim, the EEOC will notify the employer, investigate the claim, and either pursue a lawsuit against the employer or notify the employee of her right to sue the employer
In Davis, an employee sued her employer for retaliation and religious discrimination in violation of Title VII without first filing an EEOC claim.  After years into the litigation and several rounds of motions and appeals addressing other issues, her employer filed a motion to dismiss her case for failing to file a claim with the EEOC first.  Because there was a circuit split about whether the EEOC claim requirement was a jurisdictional bar to bringing a lawsuit, this issue in Davis’ case made it all the way up to the Supreme Court.
Ultimately, the Supreme Court held that the EEOC claim requirement is a “mandatory claim-processing rule” and not “jurisdictional.”  Thus, the objection can be forfeited if the employer waits too long to raise the issue.  The Supreme Court did not set a bright-line standard for how long is too long, but this new “Use it Or Lose It” standard highlights the importance of raising this objection early, which would have likely saved the employer time and money defending this case.
Please contact a member of PilieroMazza’s Labor & Employment Group if you have questions about this blog. Anthony Batt, the author of this blog, is a member of the firm’s Labor & Employment LawLitigation, and Business & Transactions Law practice groups.