Is Title VII’s administrative-exhaustion requirement a waivable rule that agencies can raise as an affirmative defense, or is it a jurisdictional prerequisite for suit?
The Supreme Court will determine whether federal jurisdiction over Title VII claims is limited to claims that have met Title VII’s administrative-exhaustion requirement by first being presented to the Equal Employment Opportunity Commission (“EEOC”). Fort Bend County, Texas (“Fort Bend”) argues that it is “fairly discernable” from the text, structure, and purpose of Title VII that Congress intended to limit jurisdiction in this way, and so presenting a claim before the EEOC should constitute a jurisdictional prerequisite to suit. Lois Davis (“Davis”), who filed a Title VII complaint alleging sexual harassment, retaliation, and religious discrimination while employed by Fort Bend, contends that because Congress has not made a “clear statement” that the administrative exhaustion requirement under Title VII is jurisdictional, jurisdiction should not be limited where the exhaustion requirement has not been met. This case will have implications for the efficiency and costs of administrative actions and Title VII enforcement.
Questions as Framed for the Court by the Parties
Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.
Lois Davis (“Davis”), an information technology supervisor employed by Fort Bend County (“Fort Bend”), reported to the human resources office that the information technology director (“director”) sexually harassed her. The director eventually resigned because of the ensuing investigation. According to Davis, her supervisor, who was friends with the ex-director, began to retaliate against her because of her complaint. This retaliation included the supervisor’s refusal to approve Davis’s request to take off work on a Sunday to attend a “previous religious commitment.” Despite the supervisor’s refusal, Davis missed work for the religious event, and the supervisor fired her.
Davis filed a Title VII complaint with the Texas Workforce Commission (“Commission”), alleging sexual harassment, retaliation, and religious discrimination. When the Commission issued Davis a right-to-sue letter, she filed suit in the United States District Court for the Southern District of Texas, dropping the sexual harassment claim, and alleging both retaliation and religious discrimination. The district court granted summary judgment for Fort Bend and Davis appealed. On appeal, the Fifth Circuit affirmed summary judgment on the retaliation claim but reversed and remanded on the religious discrimination claim. Fort Bend petitioned the Supreme Court, challenging the Fifth Circuit’s decision; the Court denied certiorari.
On remand to the district court, Fort Bend argued, for the first time, that Davis’s religious discrimination claim was improper because she had not exhausted her administrative remedies. The district court agreed with Fort Bend and dismissed the case, holding that exhausting all possible administrative remedies is a prerequisite for federal jurisdiction in Title VII cases. Davis appealed this decision to the Fifth Circuit, which reversed and remanded the case once again.
In its decision, the Fifth Circuit recognized that Title VII requires plaintiffs to exhaust administrative remedies by filing a discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”) “within 180 days of the alleged discrimination” before filing a lawsuit. To determine whether this provision limits jurisdiction, the Fifth Circuit relied on the Supreme Court’s decision in Arbaugh v. Y&H Corp., which held that courts should only make jurisdiction dependent on statutory limitations when Congress explicitly states that a limitation is jurisdictional. Because Congress did not state that jurisdiction for a Title VII claim depends on a party exhausting its administrative remedies, the Fifth Circuit refused to read in this requirement. Administrative exhaustion, the Fifth Circuit explained, is an affirmative defense that parties would have to plead. The Fifth Circuit further held that because of Fort Bend’s failure to raise exhaustion until its second time before the district court—five years after the original proceedings—that Fort Bend had waived its right to raise this affirmative defense.
Fort Bend appealed and the Supreme Court granted certiorari on January 11, 2019.
THE “FAIRLY DISCERNIBLE” ANALYSIS
Fort Bend argues that the text, structure, and purpose of Title VII demonstrate Congress’s intent to confer courts with jurisdiction over only those Title VII claims that have first been presented to the EEOC. Fort Bend points to several Supreme Court decisions interpreting similar administrative review schemes, in which the Court developed a rule stating that administrative claims that have not first been presented to the relevant agency may not be heard by courts, as long as it is “‘fairly discernible that Congress intended’ to limit jurisdiction in this way.” According to Fort Bend, where the administrative review scheme is “integrated” and “comprehensive” as well as vests authority in a competent federal agency, and where allowing jurisdiction would be inconsistent with the overall aim of the relevant statute, it should be understood to be “fairly discernible” that Congress intended to limit jurisdiction.
Fort Bend further contends that Title VII clearly fulfills these criteria. Fort Bend claims that if the text and structure of a statute fully detail the statute’s administrative process, this constitutes strong evidence in favor of a finding that the administrative scheme is “integrated” and “comprehensive.” Here, Fort Bend asserts, the multi-step administrative procedure laid out in Tile VII is “painstaking[ly] detail[ed],” and is fully comprehensive in that every category of employee must present every claim they have through the statute’s review process. Fort Bend also argues that the EEOC’s competence and expertise make it specifically suited to hear and resolve Title VII claims. Fort Bend notes that Title VII claims are charges of workplace discrimination, and the EEOC’s singular purpose as a federal agency is to address workplace discrimination. Fort Bend next asserts that conferring courts with jurisdiction over claims that have not first been presented to the EEOC would contravene Congress’s purposes in enacting Title VII. Title VII, Fort Bend contends, was implemented by Congress in order to create a scheme of review that would avoid “simultaneous proceedings” and “inconsistent decision-making,” aims that would be subverted if claimants were allowed to bypass EEOC review and first present their claims in court. Finally, Fort Bend posits that although certain federal courts of appeals have determined that Title VII’s exhaustion requirement is non-jurisdictional, these courts rely on case law that addresses the status of Title VII’s timeliness requirement—rather than its exhaustion requirement. According to Fort Bend, the reasons for deeming Title VII’s timeliness requirement non-jurisdictional are not relevant to a determination of whether the exhaustion requirement is jurisdictional.
Davis counters that where a procedural requirement has not been satisfied with respect to a claim, courts should only be deprived of jurisdiction over the claim if Congress “clearly states” that the requirement is jurisdictional. According to Davis, because Congress has not made any such clear statement that the administrative exhaustion requirement under Title VII is jurisdictional, jurisdiction should not be limited where that requirement has not been satisfied. Davis argues that the “fairly discernible” standard put forth by Fort Bend arises out of decisions addressing completely different issues from the case at hand. According to Davis, the precedent that Fort Bend relies upon articulates the “fairly discernible” standard as a test to determine which court should have jurisdiction over a type of claim, not which types of requirements are jurisdictional.
Davis further contends that even if a “fairly discernible” analysis is the standard that ought to apply, the text, structure, and purpose of Title VII fail to even suggest—let alone make “fairly discernible”—the proposition that Congress intended to limit jurisdiction over Title VII claims to claims that have first been presented to the EEOC. Davis asserts that the Court has frequently held that requirements laid out in the text of statutes are not jurisdictional when that text does not use jurisdictional terms or refer to the jurisdiction of courts. Here, Davis claims that the text of Title VII has not framed the exhaustion requirement in such terms; rather, it refers only to claimants’ procedural obligations. Nor does the structure of Title VII make “fairly discernable” the position that its exhaustion requirements are jurisdictional, according to Davis. Davis notes that Title VII’s exhaustion requirement is located in a separate section of the statute from the sections granting courts subject-matter jurisdiction over claims. Davis asserts that there are no links between those sections that would suggest that the grant of jurisdiction contained in the latter sections was intended to extend to the exhaustion requirement. Davis also argues that the statutory purpose arguments raised by Fort Bend are irrelevant here, as the Court has stated that a requirement should not be interpreted to be jurisdictional just because that reading would promote certain congressional objectives.
THE “CLEAR-STATEMENT” ANALYSIS
Fort Bend argues that the Court has never applied the “clear-statement” test advanced by Davis in assessing whether an administrative review scheme is jurisdictional, and that Title VII’s exhaustion requirement should thus be considered jurisdictional because it satisfies the “fairly discernible” standard. Fort Bend contends, however, that even if the “clear-statement” analysis is the proper test to apply, Title VII’s exhaustion requirement should still be considered jurisdictional. Fort Bend claims that in determining whether Congress has made a “clear statement” that a requirement is jurisdictional in nature, the Court generally undertakes a holistic analysis of the text and structure of the statute in question, as well as the context of the Court’s precedent regarding that statute.
The language of Title VII’s exhaustion requirement, Fort Bend asserts, bears important similarities to other exhaustion requirements that the Court has deemed jurisdictional, and the requirement is located in the same section of Title VII as the statute’s jurisdictional grant. Fort Bend further argues that the Court has held on numerous occasions that exhaustion requirements in general should be considered jurisdictional absent an explicit indication in the statute—an indication which is not present in the text of Title VII. According to Fort Bend these factors—taken together—amount to a “clear statement” in Title VII that the exhaustion requirement should be understood as a jurisdictional prerequisite.
Davis counters that the Court has consistently applied the “clear-statement” rule to resolve questions similar to the one presented here. Davis asserts that on two specific occasions, the Court has applied the “clear-statement” rule to determine that an exhaustion requirement was not jurisdictional, and notes that the decisions relied upon by Fort Bend significantly predate the Court’s adoption of the “clear-statement” rule. Davis states that to assess whether Congress has made a clear statement as to whether a certain statutory requirement is jurisdictional, courts must examine the statutory text, structure, and relevant precedent. Just as under a “fairly discernible” analysis, Davis contends, these factors do not even suggest—let alone give rise to a clear statement—that Title VII’s exhaustion requirement is jurisdictional; rather, they reinforce the opposite conclusion.
Davis argues that when Congress intends a provision to impose a limit on jurisdiction, it does so—as is evident in similar statutes—by including explicit language in the provision about the authority of courts. Davis asserts that such language is conspicuously absent from any part of Title VII. Moreover, Davis claims that the Court has indicated that it will not lightly reach a determination that Congress intended to limit jurisdiction in some way. Davis posits that the Court imposes a high standard due to the consequences that a successful jurisdictional objection can have for a lawsuit, and the fact that jurisdictional rules represent a departure from the “normal functioning of our adversarial system.” Finally, Davis contends that the Court has consistently adhered to this position, through to the present day. According to Davis, the Court has applied the “clear-statement” test to hold that certain statutory requirements were non-jurisdictional where the relevant provisions were framed in even less “emphatic” jurisdictional terms than the terms contained in Title VII’s exhaustion requirement.
The National Conference of State Legislatures (“NCSL”), in support of Fort Bend, contends that the Court should reverse the Fifth Circuit decision because requiring administrative exhaustion allows for assessment of a claim’s merits before it can proceed to litigation, which will help limit frivolous suits. The NCSL further argues that administrative agencies act as a screening mechanism and help dispose of significant disputes through conciliation and mediation, rather than litigation. The Center for Workplace Compliance (“CWC”), also in support of Fort Bend, posits that requiring administrative exhaustion helps agencies such as the EEOC review and understand possible discriminatory employment practices and develop ways to seek compliance through voluntary means. Moreover, the CWC argues that requiring parties to bring their claims before an agency allows agencies like the EEOC to counsel potential parties about the likelihood of their claims succeeding, and how to craft potential claims.
The NAACP Legal Defense & Educational Fund (“NAACP”), in support of Davis, argues that the Court should affirm the Fifth Circuit decision because requiring administrative exhaustion for jurisdiction is inefficient because it allows the employer to raise the jurisdictional issue years into litigation. Furthermore, the NAACP contends that a jurisdictional rule would be inefficient because lower courts will be unduly burdened by having to ensure exhaustion is satisfied in every case. The National Employment Lawyers Association and the Employee Rights Advocate Institute for Law and Policy (“NELA”), in support of Davis, asserts that a flexible exhaustion rule would not undermine efficiency because it would not prevent an employer from raising an exhaustion defense, it would just ensure the defense was timely. Moreover, NELA maintains that affirming the Fifth Circuit will not reduce judicial efficiency by overburdening the lower courts because employees will still be motivated to use the cheaper and faster administrative remedies before resorting to litigation.
CREATING ADDITIONAL BURDEN ON EMPLOYERS VERSUS ON EMPLOYEES
The NCSL argues that the increased litigation resulting from a holding that Title VII jurisdiction does not require administration exhaustion will impose significant costs on state and local governments that have to defend against Title VII suits. The NCSL contends that, even if an employee were to first go through the EEOC, a lack of an administrative-exhaustion requirement would enable the employee to neglect to raise certain claims before the EEOC and to then later sue their employer based on those previously-neglected claims. Furthermore, the CWC argues that litigation can be doubly burdensome on respondents who have to posits with the reputational damage that accompanies employment discrimination claims in addition to the cost of litigating. The CWC claims that, in putting a conciliation obligation in Title VII's statute, Congress recognized that litigation is expensive and burdensome on both businesses and employees, and the Court should respect this determination.
The NAACP asserts that reversing the Fifth Circuit will be unduly burdensome for layman employees because it would require them to either have a complete understanding of Title VII’s legal categories when first filing a claim or risk having their cases dismissed. Furthermore, the NAACP contends that that because Title VII is a remedial measure, courts should be allowed to retain discretion over equitable considerations when determining whether a party has met the statute’s requirements. NELA also argues that because the administrative process preceding Title VII relief is so complex, a strict jurisdictional bar would keep many applicants from ever getting belief. Moreover, NELA maintains that reversing the Fifth Circuit would unreasonably burden employees by forcing them to correctly identify the employer’s reason for discriminating against the employee before any fact gathering.
- Carolyn Wheeler, Does it Matter that the Supreme Court has Agreed to Review Fort Bend County v. Davis?, Katz, Marshall, & Banks, LLP (Jan. 29, 2019).
- Jonathan Crotty, U.S. Supreme Court to Hear Case on Filing Lawsuit Before Filing EEOC Charge, JD Supra (Jan. 25, 2019).