Administrative exhaustion is not jurisdictional for Title VII plaintiffs.

In an unanimous decision, the United States Supreme Court resolved an important question for plaintiffs alleging employment discrimination and/or retaliation under Title VII—is the statute’s administrative exhaustion requirement jurisdictional? In a majority opinion penned by Ruth Bader Ginsburg, the Court responded with a resounding no. Stressing “the distinction between jurisdictional prescriptions and non-jurisdictional claim-processing rules,” the Court ruled that Title VII’s requirement that a plaintiff file a charge of discrimination with the Equal Employment Opportunity Commission before filing suit is “not of jurisdictional cast” but, rather, a prudential prerequisite to suit. The Court made it clear that employers can continue to raise an exhaustion defense, so long as the affirmative defense is raised early enough in the litigation, i.e., in the first responsive pleading. The Court held that Fort Bend had waived this affirmative defense because it did not seek dismissal of Davis’ lawsuit until years into the litigation.

The practical effect of the Court’s ruling in Fort Bend is an employer must assert a failure-to-exhaust defense early enough in the litigation, or forfeit the defense. 

_{Case Law Alerts, 3rd Quarter, July 2019}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2019 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}