Use It or Lose It: Employers Must Timely Raise or Waive Procedural Objections in Federal Court

On June 2, 2019, the United States Supreme Court ruled that a plaintiff’s EEOC filing requirement is procedural, not jurisdictional and that if an employer does not raise a procedural objection in a timely fashion, that objection in waived.

In Fort Bend County, Texas v. Davis, the plaintiff, Davis, initially filed an EEOC complaint alleging sexual harassment and retaliation for reporting sexual harassment. While her EEOC complaint was still pending, she was fired when she was absent from work due to a church-related scheduling conflict. Wanting to then also bring a claim for religious discrimination, Davis attempted to add the claim by handwriting it into her Intake Questionnaire, but she never formally amended her complaint to include a claim for religious discrimination. Thereafter, the EEOC issued Davis a Notice of Right to Sue and she filed claims of sexual harassment, retaliation, and religious discrimination in federal court.

Years into the litigation, Fort Bend challenged Davis’ religious discrimination claim on jurisdictional grounds, arguing that the court did not have jurisdiction to hear or adjudicate the claim because Davis did not satisfy her administrative requirement to file that claim with the EEOC before bringing it in federal court.

The district court agreed that it did not have jurisdiction over Davis’ religious discrimination claim. However, the Firth Circuit reversed on the grounds that the administrative requirement of filing a complaint with the EEOC is a procedural requirement, not jurisdictional. The Supreme Court agreed and rejected Fort Bend’s untimely effort to dismiss Davis’ religious discrimination claim, holding that the claim-filing requirement is procedural, not jurisdictional, and because it is procedural, it must be “timely raised” or forfeited (aka, waived).

Takeaway: Many employment-related statutes, including Title VII and the Americans With Disabilities Act, require that an individual first bring their claims before the EEOC and received a Notice of Right to Sue on those claims before they can be brought in federal court. If claims are not brought before or otherwise investigated by the EEOC, they cannot be filed in federal court.

Here, Fort Bend was right that Davis’ religious discrimination should be dismissed. However, it needed to act right away. This is where what is referred to as a 12(b)(6) Motion to Dismiss comes into play – that is a motion that is filed immediately upon receipt of the individual’s federal court complaint that challenges the legal sufficiency of the claims raised. If Fort Bend had acted in a timely manner, most obviously by filing a motion to dismiss Davis’ religious discrimination claim right off the bat, it would have been dismissed and this never would have happened.

This highlights the importance of procedural requirements for plaintiffs and the need for immediate action by employers when those procedural requirements are not satisfied. Lesson learned.