Courtesy of James R. Touchstone, Esq.
In a unanimous decision, entitled Fort Bend Cty. v. Davis, the United States Supreme Court held that a certain Title VII requirement was a mandatory claim-processing rule, not a jurisdictional prescription. Because such rules are subject to forfeiture if not timely raised and a County employer had been tardy in raising the issue, the employer’s objection based on the rule was forfeit.
Title VII of the Civil Rights Act of 1964 forbids discrimination in employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. section 2000e-2(a)(1). Before commencing a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (“EEOC”) Section 2000e‒5(e)(1), (f)(1). Unlike other agencies like the National Labor Relations Board, the EEOC does not have authority to adjudicate the claim. Title VII directs the EEOC, after receiving the filed charge, to notify the employer and to investigate the allegations. Section 2000e‒5(b). If the EEOC finds “reasonable cause” suggesting the charge is valid, the EEOC may use “informal methods of … conciliation” to try to resolve the alleged unlawful employment practice. Ibid.
When informal methods do not resolve the issue, the EEOC has first option to bring a civil action against the employer in court. However, if the EEOC chooses not to sue, and whether or not the EEOC otherwise acts on the charge, a complainant is entitled to a “right-to-sue” notice 180 days after the charge is filed. Section 2000e‒5(f)(1); 29 CFR section1601.28. Within 90 days of receipt of the right-to-sue notice, the complainant may commence a civil action against the employer. Section 2000e‒5(f)(1).
Lois M. Davis was an information technology employee for Fort Bend County (“County”) in Texas. In 2010, she informed the County’s human resources department that she was being sexually harassed by the Director of Information Technology. Davis’ supervisor was well acquainted with this director. After an internal investigation, the director resigned. Thereafter, Davis alleged, her supervisor began retaliating against her. Davis filed a charge against the County, alleging sexual harassment and retaliation for reporting the harassment by the director.
While her EEOC charge was pending, the supervisor ordered Davis to work on an upcoming Sunday. Davis replied that she had a church commitment, but offered to arrange for another employee to work at that time in her stead. The supervisor said that if Davis did not work herself on Sunday, she would be fired. Davis went to church on the Sunday, and the County fired her. Davis tried to supplement her EEOC charge by handwriting “religion” in the “Employment Harms or Actions” area on a form called an “intake questionnaire,” but she did not amend the formal charge document. After receiving a right-to-sue letter, Davis in January 2012 commenced suit in Federal District Court, alleging discrimination on the basis of religion and retaliation for reporting sexual harassment.
After years of litigation, only the religion-based discrimination claim remained in the case. Fort Bend then asserted for the first time that the District Court lacked jurisdiction to adjudicate Davis’ case because her EEOC charge did not state a religion-based discrimination claim. The District Court granted the County’s motion to dismiss Davis’ suit. On appeal from the dismissal, the Fifth Circuit Court of Appeals reversed. Title VII’s charge-filing requirement, the Fifth Circuit held, is not jurisdictional; instead, the requirement is a prudential prerequisite to suit, forfeited in Davis’ case because the County had waited too long to raise the objection.
The Supreme Court granted certiorari to resolve the question of whether Title VII’s charge-filing requirement is a “jurisdictional” requirement that can be raised at any stage of a proceeding, or instead is a procedural prescription subject to forfeiture if asserted belatedly.
The Supreme Court held that Title VII’s charge-filing requirement is not jurisdictional, but rather a nonjurisdictional claim-processing rule. The Court explained that the word “jurisdictional” is a term that is generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan, 540 U. S. 443, 455. Jurisdictional prescriptions may also become established from incorporation into jurisdictional provisions of federal statutes, or when “a long line of [Supreme] Cour[t] decisions left undisturbed by Congress” have attached a jurisdictional label to the prescription. The Court observed that, unlike most arguments, “challenges to subject-matter jurisdiction may be raised by the defendant ‘at any point in the litigation,’ and courts must consider them sua sponte.” Because such jurisdictional objections must be considered when raised at any point, their impacts can be severe. “Tardy jurisdictional objections” waste court resources and “disturbingly disarm litigants.”
Supreme Court cases have therefore distinguished jurisdictional prescriptions from nonjurisdictional 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 timely raised. Eberhart v. United States, 546 U. S. 12, 19 (2005) (per curiam). The Court listed several examples of mandatory claim-processing rules that had been characterized as nonjurisdictional, and observed that it was left to Congress to clearly designate a prescription as jurisdictional, “[b]ut when Congress does not rank a [prescription] as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” (Arbaugh v. Y & H Corp., 546 U. S. 500, 515-516 (2006) (footnote and citation omitted).) The Court explained that, unlike a challenge to a jurisdictional prescription, an objection based on a mandatory claim-processing rule, is ordinarily forfeited “if the party asserting the rule waits too long to raise the point.” Eberhart, 546 U.S., at 15.
The Supreme Court observed that Title VII’s charge-filing requirement is stated in provisions (42 U.S.C. section 2000e-5(e)(1) and (f)(1)) separate from Title VII’s statutory provisions empowering federal courts to exercise jurisdiction over Title VII actions (42 U.S.C. section 2000e-5(f)(3)). The Court noted that charge-filing provisions require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action. The provisions thus “speak to . . . a party’s procedural obligations.” EPA v. EME Homer City Generation, L. P., 572 U. S. 489, 512 (2014). The Court also noted that the provisions do not refer to a court’s authority or jurisdiction matters.
The Court, therefore, found the charge-filing instruction similar to prescriptions the Court had previously designated as nonjurisdictional, such as instructions to follow copyright registration procedures before suing for infringement, or Title VII’s time limit instruction for filing a charge with the EEOC. Noting that “a rule may be mandatory without being jurisdictional,” the Court concluded that Title VII’s charge-filing requirement is a nonjurisdictional processing rule, not a jurisdictional prescription delineating the adjudicatory authority ofcourts. The County’s charge-filing requirement was thus forfeited in Davis’ case because the County had waited too long to raise the objection. Accordingly, the United States Supreme Court affirmed.
HOW THIS AFFECTS YOUR AGENCY
With this unanimous opinion, the Supreme Court emphasizes that Congress must explicitly declare if it wants to characterize a prescription as jurisdictional, and not expect to leave “courts and litigants … to wrestle with the issue.” Arbaugh, 546 U. S., at 516. A party expecting to make a challenge as discussed here would do well to locate unambiguous federal law designating a prescription as jurisdictional. Absent such clear language, a party may want to treat the prescription as nonjurisdictional in nature and ensure that it is asserted in a timely manner. As the Court noted, that a mandatory rule is nonjurisdictional does not give a plaintiff incentive to neglect or ignore the rule – a defendant raising a prompt defense has a potentially dispositive defense in a Title VII complaint case. The crux, as it so often is, is the timeliness of the matter.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at email@example.com.
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 139 S. Ct. 1843 (2019).
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