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Must an Employee File an EEOC Discrimination Charge Before a Lawsuit?

The U.S. Supreme Court will soon decide whether an employee who brings a discrimination claim must always exhaust the administrative remedies available through the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit or if the employee can go straight to court if the employer doesn’t object.

The plaintiff in this case sued her employer for religious discrimination under Title VII of the Civil Rights Act of 1964. Federal law generally requires employees to go through the EEOC’s administrative complaint process before filing a lawsuit, but the plaintiff took her claim straight to court. After five years of court proceedings, her employer, Fort Bend County, Texas, noted that her lawsuit should be dismissed because she failed to first file a charge with the EEOC.

The central issue in the case is whether the EEOC’s administrative complaint process is a jurisdictional requirement, which would bar the lawsuit altogether, or a mandatory claim-processing rule, which the employer could choose to waive.

“Put another way, if the filing of an EEOC charge is a jurisdictional requirement to filing a Title VII lawsuit, there can be no excuse for not complying,” explained David Morrison, an attorney with Goldberg Kohn in Chicago. Such rules promote an efficient court system and judicial process and provide certainty to employers that when plaintiffs fail to exhaust administrative remedies, they also lose their right to litigate those claims in court.

When the condition is waivable, on the other hand, the courts can evaluate whether there are circumstances when noncompliance may be excusable, Morrison noted. However, this would require the employer to vigilantly assert defenses to federal litigation to ensure that it does not waive the right to challenge the plaintiff’s failure to exhaust administrative remedies, he said.

Federal courts have disagreed on whether the EEOC’s complaint process is waivable. “The ruling will not only resolve a circuit split, but it will also provide guidance to the employment bar about filing and when to assert a failure to do so,” said Randi May, an attorney with Hoguet Newman Regal & Kenney in New York City.

Oral Arguments

At the oral argument before the Supreme Court on April 22, the employer’s counsel focused mainly on the textual interpretation of the statute. “When Title VII’s exhaustion requirement is satisfied, the power to address an employment-discrimination claim shifts from the executive to the judicial branch,” said Colleen Roh Sinzdak, an attorney with Hogan Lovells in Washington, D.C., who argued on behalf of Fort Bend County. “The exhaustion requirement is, therefore, jurisdictional in the plainest sense of that word.”

Justice Ruth Bader Ginsburg challenged that view. “It’s one thing to say when Congress sets up a scheme where the agency is the equivalent of a court of first instance, it makes a decision and that decision is reviewed. But, in a Title VII case, the court is never reviewing the decision of the EEOC because [the agency doesn’t] have any authority to make decisions.”

Sinzdak noted that even though the EEOC doesn’t serve as an administrative court, the agency is empowered to resolve matters through cooperation and conciliation. “I think the important question with respect to jurisdiction is whether the agency has been empowered to attempt to resolve a claim,” she said.

The employee’s attorney argued that statutory limitations are not jurisdictional unless Congress has said so in a clear statement. “That is meant to be a readily administrable bright-line rule,” argued Raffi Melkonian, an attorney with Wright Close & Barger in Houston.

Justice Brett Kavanaugh seemed most interested in the practical application of a proposed jurisdictional rule, Morrison noted. What type of burden would a jurisdictional rule impose on district courts across the country to ensure that each Title VII complaint was supported by a timely filed EEOC charge that correlated with the allegations contained in the complaint? The employee’s counsel argued that such a rule would be unwieldy.

“It seemed that Kavanaugh agreed and may signal that he would side with the more liberal judges in interpreting Title VII as only creating an administrative exhaustion requirement, not a jurisdictional requirement,” Morrison said.

Justice Samuel Alito Jr., however, focused on the fact that the EEOC is successful in helping some parties resolve their cases. Alito made this argument seemingly to support the employer’s position, Morrison said. “By making the EEOC process an unwaivable condition to filing a lawsuit, the court would be encouraging parties to make efforts to conciliate before wasting precious judicial resources fighting in court.”

President Donald Trump’s administration presented a friend of the court argument supporting the EEOC and the employee. Among other things, the government argued that a jurisdictional rule would create “unfair surprise to plaintiffs,” create “unjustified windfalls to defendants” and “could impede the commission’s own efforts.”

There are policy rationales available to both sides of the argument, Morrison observed. “If I were counting votes, I think that the court is going to side with the employee and conclude that the textual and policy reasons favor finding an administrative exhaustion rule—not a jurisdictional rule—governs the filing of a timely EEOC charge before filing a federal lawsuit,” he said.

Practical Points

Employees who bring Title VII and certain other discrimination claims are required under federal law to file a charge with the EEOC within 180 calendar days from the day of the incident—though the filing deadline is extended to 300 calendar days if a state or local agency has a parallel anti-discrimination law. In general, employees must allow the EEOC 180 days to resolve the charge before filing a claim in court, but in some cases the EEOC may issue a “right to sue��� letter in less time.

Note that employees follow a different timeline for age-discrimination claims, and they can take Equal Pay Act claims straight to court.

Employers must post notices in the workplace to make clear that employees must comply with strict time limits for filing employment discrimination claims.

The case is Fort Bend County, Texas v. Davis, U.S., No. 18-525.

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