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Is EEOC Exhaustion a Jurisdictional Requirement?

Earlier this year, the U.S. Supreme Court agreed to consider whether federal courts have the authority to waive a Title VII plaintiff’s failure to exhaust administrative remedies before the Equal Employment Opportunity Commission (“EEOC”), or state equivalent, before filing a complaint in federal court. A person who wants to sue under Title VII (or other federal employment anti-discrimination laws) must first file a charge of discrimination with the EEOC. This is known as “administrative exhaustion.” The case before the Supreme Court is Fort Bend County v. Davis.

Exhaustion case

Lois Davis, an IT supervisor for Fort Bend County, Texas, sued Fort Bend County in federal district court, alleging retaliation and religious discrimination under Title VII of the Civil Rights Act of 1964.  Davis claims she was fired for not reporting to work on a Sunday (she attended a church service), in retaliation for reporting that she was sexually harassed and sexually assaulted by a superior. She filed sexual harassment and retaliation charges with the Texas Workforce Commission. After investigating, the Commission told her she could sue and she brought a retaliation and religious discrimination lawsuit against Fort Bend. Fort Bend pointed out she didn’t exhaust her administrative remedies by filing a charge of religious discrimination with the Texas Workforce Commission. After several appeals, the Fifth Circuit reversed the district court’s ruling dismissing Davis’ claim. In its reversal, the Fifth Circuit ruled that a federal court could hear Title VII claims even if the plaintiff had not completed an administrative process required under Title VII because Fort Bend waived the defense by waiting five years to raise it.

The Fourth, Ninth, and Eleventh Circuits have held that the administrative exhaustion requirement is jurisdictional, which means that a federal court cannot hear employment discrimination claims under Title VII if the plaintiff has not exhausted the administrative process. The First, Second, Third, Fifth, Sixth, Seventh, Tenth, and D.C. Circuits, however, have held that this requirement is not jurisdictional, so a federal court can consider employment discrimination claims by a plaintiff who has not filed an EEOC charge if, for example, the defendant did not raise this failure in a timely manner thus waiving the exhaustion defense. The Eighth Circuit is the only federal appeals court that has not issued a decision on this issue.