Protecting Employers Since 1985

He Who Hesitates May be Lost

While the statement “he who hesitates may be lost” has been around for decades, it may be the underpinning of a very recent Supreme Court decision. In a unanimous decision issued by the United States Supreme Court on June 3, 2019 (Fort Bend County vs. Davis, No. 18-525, Argued 4/22/19; Decided 6/3/19) the Supreme Court of the United States held that an employment discrimination plaintiff’s failure to exhaust administrative remedies is not a jurisdictional prerequisite to filing litigation and, therefore, Federal courts may be able to hear discrimination claims under Title VII even if workers fail to raise those claims with the Equal Employment Opportunity Commission (“EEOC”) or a state workplace bias watchdog group.

Under most Federal laws prohibiting discrimination and retaliation, such as Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, and the Age Discrimination and Employment Act, plaintiffs are required to file an Administrative Charge alleging the discrimination or retaliation with the EEOC or state agency before they may file a lawsuit in Federal or State Court alleging such discrimination and retaliation. In point of fact, many state civil rights statutes contain similar administrative exhaustion requirements for employment claims. Simply stated if a plaintiff has not “exhausted their administrative remedies” the lawsuit may be subject to dismissal.

In the Fort Bend County vs. Davis litigation, Lois Davis filed a charge with the Texas Workforce Commission alleging sexual harassment and retaliation by her employer, Fort Bend County. While the charge was pending, Davis informed her supervisor that she could not work on a particular Sunday due to a “previous religious commitment” but the supervisor did not approve her absence. When Davis failed to report to work on that Sunday, she was terminated. Davis then submitted to the Texas Workforce Commission documentation about her charge dealing with sexual harassment and retaliation and hand wrote the word “religion” as an additional claim of harm but did not amend her original charge of discrimination to add “religion” to the “allegations of sexual harassment and retaliation”. Sometime later, the EEOC issued to Ms. Davis a right to sue letter and she filed a lawsuit in the Federal District Court alleging retaliation and religious discrimination under Title VII. The Federal District Court granted summary judgment to the County on all claims and Davis appealed.

The Fifth Circuit affirmed the Federal District Court decision with regard to the retaliation claim, but reversed dismissal of the religious discrimination claim and remanded that claim to the District Court for further action. On the remand, the Fort Bend County, for the very first time, raised the issue that Davis had failed to exhaust her administrative remedies on the religious discrimination claim as required by Title VII and the District Court agreed, finding that administrative exhaustion is a jurisdictional prerequisite in Title VII cases and that the County did not waive the defense by failing to assert it in the initial court proceedings.

On a second appeal, the Fifth Circuit sided with Davis and held that the “exhaustion requirement” is not a jurisdictional bar to the suit, but an affirmative defense that must be pleaded by the defendant in a timely fashion.

The Supreme Court, in its June 3, 2019 unanimous decision affirmed the Fifth Circuit holding that the “administrative exhaustion requirement” is not a jurisdictional prerequisite to filing a Federal lawsuit under Title VII and that employers must bear the burden of asserting it in a “timely fashion” as an affirmative defense. Employers who fail to timely raise the exhaustion defense in a timely fashion will forfeit the right to raise it at a later date.

It is essential for employers who are dealing with a job bias claim, whether in Federal or State Court properly analyze the litigation and determine whether the lawsuit raises issues that have not been raised in the plaintiff’s administrative charge. Employers must assert this exhaustion defense early in the litigation as an AFFIRMATIVE DEFENSE or may be forced to be litigating a job bias claim that could have been avoided.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at

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