Labor & Employment Law Daily Title VII’s charge-filing requirement is not jurisdictional, but it is a mandatory processing rule
Wednesday, June 5, 2019

Title VII’s charge-filing requirement is not jurisdictional, but it is a mandatory processing rule

By Marjorie Johnson, J.D.

Resolving a conflict among the federal circuit courts, the High Court affirmed a Fifth Circuit decision holding that a county employer facing a Title VII action forfeited its exhaustion defense by waiting to raise it until “an entire round of appeals all the way to the Supreme Court.”

Title VII’s charge-filing requirement, which is stated in provisions of Title VII discrete from the statutory provisions empowering federal courts to exercise jurisdiction over Title VII actions, is a non-jurisdictional claim-processing rule that requires parties to take certain procedural steps during or before litigation, a unanimous U.S. Supreme Court ruled in a decision authored by Justice Ginsberg. While such a rule may be mandatory insofar as a court must enforce it if timely raised, it is not a “jurisdictional” requirement generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). Because “a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill,” the Fifth Circuit’s reversal of summary judgment against the employee was affirmed (Fort Bend County, Texas v. Davis, June 3, 2019, Ginsburg, R.).

Charge alleges harassment, retaliation. The employee filed an EEOC charge alleging she suffered sexual harassment by a male director and retaliation for complaining. She was fired while her charge was pending, purportedly because she failed to show up for work on a Sunday and went to a church event instead.

Handwrites new claim on questionnaire. She attempted to supplement her charge by handwriting “religion” on the intake questionnaire and checking the boxes for “discharge” and “reasonable” accommodation.” However, she did not amend the charge document itself. Upon receiving a right-to-sue letter, she brought this lawsuit alleging religious discrimination and retaliation for reporting sexual harassment.

Prior appeal. The district court dismissed both claims on summary judgment. On appeal, the Fifth Circuit affirmed as to her retaliation claim but reversed as to her religious bias claim. The county filed a petition for certiorari, but it was denied.

Years later, jurisdiction challenged. On remand—and after years of litigation—the county asserted for the first time that the district court lacked jurisdiction since the religious bias claim was not raised in the EEOC charge. The district court agreed and dismissed the lawsuit, ruling that the employee failed to satisfy the charge-filing requirement with respect to her religion bias claim and that the requirement was “jurisdictional” and thus nonforfeitable.

The Fifth Circuit reversed, ruling that Title VII’s charge-filing requirement is not jurisdictional. Instead, it is a prudential prerequisite to suit that the county forfeited by waiting too long to object. The Supreme Court granted the county’s petition for certiorari to resolve a conflict among the federal circuit courts over whether the charge-filing requirement is jurisdictional.

What is jurisdictional? “Jurisdiction,” the Court has observed, “is a word of many, too many, meanings” and in recent years it has undertaken to “ward off profligate use of the term.” As the Court has previously noted, the term is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction).

Congress may make other prescriptions jurisdictional by incorporating them into a jurisdictional provision, as Congress has done with the amount-in-controversy requirement for federal-court diversity jurisdiction. Characterizing a rule as a limit on subject-matter jurisdiction “renders it unique in our adversarial system.” Unlike most arguments, challenges to subject-matter jurisdiction may be raised by the defendant “at any point in the litigation.”

Distinguished from “claim-processing rules.” The Court has therefore stressed the distinction between “jurisdictional prescriptions” and “non-jurisdictional claim-processing rules,” which “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” A claim-processing rule may be “mandatory” in the sense that a court must enforce the rule if it is properly raised. However, an objection based on a mandatory claim-processing rule may be forfeited if the party asserting it waits too long.

Examples. Justice Ginsburg noted that the Court has characterized as non-jurisdictional an array of mandatory claim-processing rules and other preconditions to relief, listing several specific examples. These included the Railway Labor Act’s requirement that before arbitrating, parties to certain disputes attempt “in conference” settlement as well as Title VII’s limitation of covered “employers” to those with 15 or more employees and its time limit for filing an EEOC charge.

Ball in Congress’ court. While not demanding that Congress “incant magic words” to render a prescription jurisdictional, the Court has explained that it would “leave the ball in Congress’ court” to clearly state that a prescription counts as jurisdictional. In those cases, “courts and litigants will be duly instructed and will not be left to wrestle with the issue.” However, when Congress does not identify a prescription as jurisdictional, it should not be treated as such.

Rules don’t “speak to” court’s authority. Based on these principles, Title VII’s charge-filing requirement “is not of jurisdictional cast.” Federal courts exercise jurisdiction over Title VII actions pursuant to U. S. C. §1331’s grant of general federal-question jurisdiction, and Title VII’s own jurisdictional provision. Separate provisions of Title VII contain the Act’s charge-filing requirement, and those provisions don’t “speak to a court’s authority” or “refer in any way to the jurisdiction of the district courts.

Refer to procedural obligations. Instead, the provisions speak to “a party’s procedural obligations.” They require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action. Like “kindred provisions directing parties to raise objections in agency rulemaking, follow procedures governing copyright registration or attempt settlement,” Title VII’s charge-filing requirement “is a processing rule, albeit a mandatory one” and not a jurisdictional requirement.

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