Even in these divisive times, the nine justices of the Supreme Court can occasionally agree on the outcome of a case. They have done so in Fort Bend County v. Davis, a case that presents a technical but important question about discrimination claims pursued under Title VII, the main federal anti-discrimination law. The case presented the Court with the question whether the failure to raise a claim before the Equal Employment Opportunity Commission (EEOC) or a state counterpart, which is required under the statute, has the effect of depriving a court of jurisdiction to hear a lawsuit premised on that claim. By a vote of 9-0, and with an opinion written by Justice Ruth Bader Ginsburg, the Court answered that question in the negative. The failure to exhaust administrative remedies can be raised as a defense by an employer sued under Title VII—but the defense can also be waived, permitting the lawsuit to proceed despite the absence of an administrative review. In this column, I’ll explain the reasoning of the Court’s opinion and, more importantly, why a seemingly small technical question might make a real difference in protecting employees from discrimination in the workplace.
Litigating Claims Under Title VII
Title VII of the Civil Rights Act of 1964 is at the heart of federal anti-discrimination law. It prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin.
Title VII imposes an administrative exhaustion requirement on potential plaintiffs. That is, before pursuing a claim in court, the plaintiff must first file a charge with the EEOC, the agency charged with implementing most federal anti-discrimination laws (or a state agency that has entered into a work-sharing agreement with the EEOC). This charge must be filed within either 180 or 300 days of the alleged discriminatory acts (or the last in a series of acts that combine to create a hostile work environment), depending on whether there is a federal-state cooperation agreement.
This administrative-exhaustion process is designed to give the EEOC the opportunity to facilitate a voluntary resolution between the parties. After receiving a charge, the EEOC is supposed to notify the employer and investigate the allegations. The EEOC has no power to adjudicate the employee’s claim or impose penalties, but it may seek voluntary conciliation. The EEOC may investigate the claim and seek conciliation from the employer. It may choose to do nothing. It may choose to litigate the claim itself in court. If it decides not to take the case on behalf of the employee, the EEOC must issue a “right-to-sue letter,” which is evidence that the administrative exhaustion requirement has been satisfied. After receiving such a letter, the employee has 90 days to file a lawsuit.
The question raised in the Fort Bend case is what the consequences should be of an employee’s failure to file a charge with the EEOC on a particular claim that is included in a subsequent lawsuit. Is it jurisdictional, as the employer argued, which would mean that the court does not have jurisdiction to consider the claim? Or is it a claims-processing requirement, as the plaintiff argued, which would mean that the employer’s failure to timely object to the lack of administrative exhaustion might result in a waiver of the requirement?
The Long and Winding Road for the Plaintiff in Fort Bend County v. Davis
Lois Davis worked as in the information technology department for Fort Bend County. In 2010, she reported to the human resources department that the director of her department, Charles Cook, was sexually harassing her. The County investigated, and Cook resigned. But the problem was not resolved, Davis claims, because her supervisor, Kenneth Ford, began retaliating against her for reporting Cook. She claims that Ford began curtailing her work responsibilities.
In February 2011, Davis submitted an “intake questionnaire,” a sort of preliminary document with the EEOC. A month later, she filed a formal charge of harassment. While her charge was pending, Davis was told to report to work on a Sunday. She told Ford that she had a commitment at church that day and offered to arrange for someone else to take her place at work. Ford, however, told her that she could either show up or get fired. She did not show up, and she was, in fact, fired. She wanted to supplement her charge by adding claims of religious discrimination and “discharge” against the County. Davis handwrote “religion” and checked boxes for “discharge” and “religious accommodation” on her intake form, but she did not make corresponding changes to her formal charge document.
She filed a civil lawsuit in January 2012 alleging discrimination on the basis of religion and retaliation for reporting sexual harassment. The federal district court granted the County’s motion for summary judgment, but while the Fifth Circuit affirmed that ruling with respect to her retaliation claim, it reversed on her religious discrimination claim—thus preserving it for a trial on the merits. Fort Bend sought review by the Supreme Court at that point but did not obtain it. Her religious discrimination case went back to the district court for trial. At that point, for the first time, the County argued that the claim should be dismissed because she had not stated such a claim in the formal EEOC charge—and that such failure deprived the court of jurisdiction to hear the claim. The district court, which had already dismissed plaintiffs’ claims once, agreed with the county and dismissed her religious discrimination claim that the appellate court had restored.
Davis’s case went again to the Fifth Circuit, this time on the question whether her failure to include religious discrimination in her EEOC charge was (i) an omission that deprived the court of jurisdiction; and (ii) if not, whether the County had waived the requirement by failing to raise it until after the case had wound its way up to the Supreme Court and back down to trial.
This time around, the Supreme Court agreed to hear Davis’s case. The question whether the administrative exhaustion requirement is jurisdictional was the subject of a circuit split—a conflict among federal appellate courts—that is often a factor that motivates the Supreme Court to grant certiorari and review a case.
The Supreme Court’s Ruling in Fort Bend County v. Davis
The Court began its opinion by noting that “jurisdictional” is an over-used word that should be “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).” And while Congress can make other requirements “jurisdictional” by including them in a jurisdictional provision, and courts may treat some requirements as jurisdictional if Congress has elected not to disturb a long line of cases treating them as such, not every requirement should be elevated to that level. As Justice Ginsburg wrote, the “jurisdictional” characteristic comes with special powers. Challenges to jurisdiction can be raised at any point in litigation, and courts are obligated to raise them even if the parties do not—features that can produce both harsh consequences and wasted resources.
In prior cases, the Court has distinguished between jurisdictional requirements and non-jurisdictional “claim-processing” rules. The latter rules may well be mandatory, yet the failure to follow them does not spell a certain end to that party’s case. One party’s right to have the other party follow mandatory rules can be intentionally or carelessly forfeited by the failure to raise it in a timely manner.
Without much ado, the Court had no trouble concluding that Title VII’s charge-filing requirement “is not of jurisdictional cast.” Title VII claims are governed by the general grant of federal-question jurisdiction (authority of federal courts to hear cases that involve federal law) as well as a jurisdictional provision contained in the statute itself. The charge-filing provisions are found elsewhere in the statute, and there is nothing in them that suggests they rise to the status of jurisdictional rules. The charge-filing requirements are simple procedural rules designed to streamline the process, put employers on notice of charges, and invite voluntary conciliation. It would be odd to deem the administrative exhaustion requirement jurisdictional when the agency doesn’t even possess the authority to adjudicate the case. When and if a case proceeds to a civil lawsuit, the complaint provides notice of the charges to the defendant-employer, regardless of whether each claim was included in the EEOC charge. While the employer is welcome to challenge the failure to exhaust administrative remedies with respect to each and every claim, its failure to do so should have no effect on the viability of the underlying lawsuit. As the Supreme Court concluded, “Title VII’s charge-filing requirement,” like many similar requirements in federal causes of action, “is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” This is consistent with a 2006 opinion in Arbaugh v. Y&H Corp., also authored by Justice Ginsburg, in which the Court held that the numerical threshold for Title VII coverage—at least 15 employees—is not a jurisdictional requirement. In both cases, the mandatory rules, if properly raised, can be the basis for dismissal of a lawsuit. But neither is entitled to superior status that permits objections at any point.
Although the defendant argued that this would defeat Congress’s intent to encourage conciliation, the Court observed that plaintiffs have “scant incentive to skirt” the rule given that defendants “have good reason promptly to raise an objection that may rid them of the lawsuit filed against them.” The complainant “would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.”
By waiting five years to raise the objection, Fort Bend County lost its chance to object that Davis’s original charge did not mention religious discrimination. She now, finally, will get the chance to prove her claims at trial.
Why This Matters
The legal answer in this case was found in the structure, language, and purpose of the administrative exhaustion requirement—a proper exercise by the Court in statutory interpretation. But the Court’s ruling also supports broader principles of Title VII. The Court has held many times that it should be construed broadly to protect employees from discrimination and to compensate them when it occurs. Discrimination claims are already notoriously hard to win, with plaintiffs winning less often than in any other kind of civil case. It is often the case that employees are unrepresented by counsel at the time they file a charge with the EEOC, even if they have obtained counsel before filing a lawsuit. Lay people are less likely to know the technical, procedural rules and less likely to understand their importance. Employees are likely to learn more about the discrimination they may have experienced after bringing a formal charge, perhaps bringing to light a different cause of action than the one that brought them to the EEOC in the first place. But would they naturally understand to go back and amend the EEOC charge to add the new claim? It is also common for complaints of discrimination to trigger retaliation—as many as 60% of employees who complain about discrimination will be retaliated against. But given the timing, the initial charge would not have mentioned retaliation. Moreover, retaliation complaints are often easier to prove because factfinders are more willing to draw inferences about retaliation than about the underlying discrimination—yet, the retaliation claim is the one most likely to be dismissed based on the failure to exhaust administrative remedies. Regardless of the circumstances, the employer can always raise the lack of administrative exhaustion as a defense—and they routinely win dismissals on this ground. But there is no reason to make it even easier to for them to stop a discrimination lawsuit in its tracks if they didn’t bother to raise the defense in a timely and proper manner.