Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Advanced Search Go
Free Newsletter Sign Up

High Court Weakens Employer Defense to Job Bias Claims (1)

June 3, 2019, 2:15 PMUpdated: June 3, 2019, 6:48 PM

The U.S. Supreme Court June 3 limited a procedural defense available to employers in job discrimination lawsuits by finding that workers’ obligation to file bias claims with an administrative agency before going to court is a claims-processing requirement.

The high court said in a unanimous ruling that the requirement to file charges with the Equal Employment Opportunity Commission or similar state agencies isn’t a jurisdictional issue. That means an employer can lose the right to get a discrimination lawsuit thrown out based on a worker’s failure to exhaust his or her claim with an agency.

The ruling puts the onus on employers to promptly raise their objections to get lawsuits brought under Title VII of the 1964 Civil Rights Act tossed on that procedural ground. But it doesn’t remove a worker’s obligation to file administrative claims before going to court.

“A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense,” Justice Ruth Bader Ginsburg wrote for the court.

Ginsburg, who dominated questioning during oral argument, likened Title VII’s administrative exhaustion requirement to other processing rules that don’t implicate court jurisdiction. Other examples include the need for parties to raise objections during agency rulemaking and procedures for copyright registration, she said.

Although the ruling wasn’t surprising, it underscores the need for employers and their attorneys to scrutinize complaints and make sure they match up with the administrative charges, said Paul Goatley, attorney with the management-side law firm Fisher & Phillips. Any problems with a worker’s obligation to exhaust administrative remedies should be raised in the employer’s answer to the complaint or in a motion to dismiss, he said.

“If they fail to do that at the outset, they definitely risk losing that defense,” Goatley said.

Added Allegations

The decision will matter most in cases in which a worker files an administrative charge but later adds other claims in a lawsuit that didn’t get investigated by the agency, and the employer fails to immediately raise the procedural defense to those added claims, said Carolyn Wheeler, a former EEOC attorney who practices at the plaintiffs’ law firm Katz Marshall & Banks.

It’s relatively common for workers to amend their complaints with new allegations, said Deborah Widiss, a law professor at Indiana University.

“The sad reality is that they do often face retaliation,” Widiss said of workers who bring job bias claims. “Sometimes that retaliation can involve another kind of discrimination.”

The Supreme Court’s ruling stems from former Fort Bend County, Texas, worker Lois Davis’ religious discrimination claim, which she added to her original charge of sexual harassment and retaliation. Fort Bend argued that Davis never included that additional claim in the administrative charge before she sued, but the U.S. Court of Appeals for the Fifth Circuit said the county was too late to raise that defense.

The decision affirming the Fifth Circuit’s ruling settles a deep circuit split on the issue. Eight circuit courts had ruled that pre-suit claim exhaustion is just an element of making a discrimination claim under Title VII of the 1964 Civil Rights Act, while three said it’s a jurisdictional obligation.

The ruling also should allow Davis to take her lawsuit to trial in a Texas federal court, said her attorney, Raffi Melkonian of Wright Close & Barger.

Fort Bend’s lawyer, Colleen Roh Sinzdak of Hogan Lovells, didn’t immediately respond to requests for comment.

The case is Fort Bend Cty. v. Davis, U.S., No. 18-525, Decision 6/3/19.

(Updated with additional reporting.)

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Cynthia Harasty at; Jay-Anne B. Casuga at