On January 11, the U.S. Supreme Court accepted an appeal of a Fifth Circuit Court of Appeals decision dealing with the administrative prerequisites for a plaintiff to file suit against an employer under Title VII and related civil rights statutes. Under Title VII, an aggrieved party must file a charge of discrimination within 180 days of the last alleged discriminatory act in order to recover. The question for the Supreme Court is whether this administrative exhaustion requirement is jurisdictional or procedural in nature.

In Ft. Bend County v. Davis, the plaintiff filed suit but never submitted the required EEOC charge. The employer moved to dismiss the suit on jurisdictional grounds, but the Fifth Circuit disagreed, concluding that the charge filing requirement is procedural. This means that the suit can proceed until the employer demonstrates (usually through summary judgment) that no EEOC charge was filed. The federal appellate circuits are divided on this question, and the Supreme Court noted this split as the reason for accepting review of this decision.

Employers may ask why it matters whether the lawsuit is dismissed on jurisdictional or procedural grounds. From a cost perspective, having to engage even in limited discovery and file for summary judgment drives up the defense expenses and increases even nuisance settlement value for such claims. In addition, the ability to engage in discovery on the Title VII claims gives the plaintiff the ability to assert and develop related claims that do not have the same administrative filing requirement. A Supreme Court decision for the employer in this case would provide a clear and early end to suits filed in the absence of an EEOC charge.