The Supreme Court has granted a writ certiorari to address the question of whether Title VII’s requirement of the need to file a charge with the Equal Employment Opportunity Commission (EEOC) before going to court is a jurisdictional or administrative exhaustion requirement. The case comes from the Fifth Circuit and has been bouncing around the lower courts for many years. Davis v. Fort Bend Cty., 893 F.3d 300 (5th Cir. 2018), cert. granted,Fort Bend Cty. v. Davis, No. 18-525, 2019 U.S. LEXIS 578 (Jan. 11, 2019).
While this may seem like a pointy headed legal issue, the ramifications are big. If the charge filing requirement is jurisdictional, lawsuits would have to be tossed where there was no underlying charge to support the alleged discrimination. If the charge filing obligation is an administrative rule, an employer’s failure to raise the exhaustion requirement would enable the case to proceed.
A similar issue was addressed by the Court in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) regarding Title VII’s requirement that an employer have 15 or more employees to be covered by the law. In Arbaugh, the employer waited until a jury returned a verdict against it before raising the fact that it did not meet the 15 employee threshold. The Court rejected the employer’s claim that the requirement was jurisdictional, holding that a defendant must raise the issue as an affirmative defense or lose the ability to prevail on that basis.
The Fort Bend Countycase started years ago after Davis was fired when she did not show up for work one Sunday because she had a “previous religious commitment.” She alleged sexual harassment and retaliation in her discrimination charge, but never amended it to include religion (although she did amend her intake questionnaire). After receiving her right to sue letter, Davis filed a lawsuit alleging religious discrimination and retaliation. The County moved for summary judgment and won. Davis appealed, and the Fifth Circuit remanded. The County petitioned for certiorari, which was denied.
Back in the District Court on remand, the County argued for the first time that Davis failed to exhaust her administrative remedies for her religious discrimination claim because “religion” was not included as a part of her charge. The District Court agreed and, holding that the exhaustion requirement is jurisdictional, dismissed the case. Davis appealed again.
The Fifth Circuit rejected the District Court’s approach and – looking to Arbaugh– held that the exhaustion requirement is non-jurisdictional. The court was not pleased that, despite years of litigation, the County had failed to raise the defense until the second time around. The court’s decision resolved a split among its prior rulings. It also noted that finding the exhaustion requirement is non-jurisdictional was consistent with decisions from the First, Second, Sixth, Seventh, Eighth, Ninth and D.C. Circuits. The Fourth and Eleventh Circuits disagree, creating a circuit split.
The EEOC and the DOJ also take divergent views. The DOJ says the requirement is jurisdictional; the EEOC says it is not. It is expected that the Supreme Court will address the issue during this term, so expect a decision before the end of June.