Much has been said about Fort Bend County, Texas v. Davis, No. 18-525 (June 3, 2019) in the past 24 hours. Some articles make it sound as if a Title VII aggrieved party can bypass the EEOC’s charge-filing requirement, file a discrimination lawsuit, and all will be well. Not so. If a Title VII aggrieved party does just that, a respondent employer will likely filed a motion to dismiss in the court case for failing to exhaust administrative remedies. As the court’s opinion clearly intimated, it would be foolhardy for a party to do just that only to end up back where he or she started, which is filing a discrimination charge in the first instance. Id. at 11.
The Davis opinion will not dramatically change the existing practices of plaintiffs and defendants. But it does place the burden on the defendant to raise the lack of a pre-suit discrimination charge filing at the earliest moment or it can be waived or forfeited.
If any employer has any doubt about whether claims raised in a subsequent lawsuit were initially brought in a discrimination charge with the EEOC, that objection must be pressed early. Plaintiffs have time and time again included new claims in lawsuits that were not initially brought in pre-suit discrimination charges. Employers need to fully understand that a claim that someone was terminated because of one’s race is not the same as a racially hostile work environment that did not lead to the employee’s termination. These two claims are also much different than a retaliation claim. Plaintiffs may have many claims arising from their employment that could give rise to a charge, and a keen eye must discern what was and what was not included in the discrimination charge.