Title VII Requires Administrative Exhaustion
Before an employee alleging employment discrimination under Title VII may file a lawsuit in federal court, she must first exhaust administrative remedies by bringing formal charges with the Equal Employment Opportunity Commission (EEOC) or an equivalent state agency. This administrative-exhaustion process is designed to allow the EEOC to step in, and also gives the parties an opportunity at early settlement. If the EEOC decides not to take the case, it must issue a “right-to-sue letter,” which is evidence that the administrative exhaustion requirement has been satisfied. The employee then has 90 days to file suit.
There has long been a circuit split on how to treat discrimination claims that were never raised with the EEOC but later find their way into a plaintiff’s lawsuit. Several appeals courts treated this failure as an affirmative defense that could be waived by the employer if not timely asserted. The competing approach was to treat administrative exhaustion as a jurisdictional requirement. Meaning the defense could not be waived, thereby permitting employers (and the court) to raise the issue at any time. Prior to the Supreme Court weighing in the on the matter, the Eleventh Circuit fell into the latter camp. See, e.g., Bloodworth v. Colvin, 17 F. Supp. 3d 1245, 1250 (N.D. Ga. 2014) (“[I]n the Eleventh Circuit, administrative exhaustion is a jurisdictional prerequisite to Title VII actions.”) (citing Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir.1999)).
Background – Fort Bend County v. Davis, No. 18-525
Lois Davis worked in the information technology department for Fort Bend County. In 2010, she reported to the human resources department that her direct supervisor was sexually harassing her. The County investigated, and the supervisor resigned. That did not solve the problem, however, as Davis’ new supervisor began retaliating against her.
Davis filed a complaint with the EEOC alleging harassment. While this complaint was pending, Davis was ordered to work on a Sunday. When she objected that she had a commitment with her church, she was fired. Davis attempted to supplement her EEOC charge by checking a box for “religious accommodation,” but she did not make corresponding changes on the formal complaint. A right to sue letter was issued and Davis brought suit in federal court. Important for present purposes, Davis included claims for retaliation and religious discrimination.
Following several years of litigation, Davis’ retaliation claim was dismissed but her religious discrimination claim survived. On the cusp of trial, and for the first time, the employer raised the argument that Davis did not exhausted her religious discrimination claim by properly including it in her EEOC charge. The trial court agreed there was no exhaustion, and viewing administrative exhaustion as a jurisdictional requirement, the court concluded it could not be waived. Davis’ claims were thus dismissed. The Supreme Court took Davis’ case to determine (once and for all) the circuit split.
Supreme Court Concludes Administrative Exhaustion is an Affirmative Defense
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, not every requirement should be elevated to that level.
Against this general backdrop, the Court had little trouble concluding that VII’s exhaustion requirement “is not of jurisdictional cast.” Title VII contains a jurisdictional provision in the statute, and the exhaustion requirements are found elsewhere in the statute. The Court found this persuasive evidence that Congress was not treating exhaustion as a jurisdictional threshold.
Further, the Court noted that it would be odd to deem the administrative exhaustion requirement jurisdictional when the agency does not possess the authority to adjudicate the case. The Court concluded that the charge-filing requirements are simple procedural rules. While the employer is welcome to challenge the failure to exhaust administrative remedies with respect to each claim, its failure to do so should have no effect on the viability of the underlying lawsuit. “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.”
Turning to the facts of the case, the Court found Fort Bend County waived its chance to raise the exhaustion argument by waiting over 5 years to bring this issue before the trial court. Davis’ religious discrimination claim could thus proceed.
Employers Can Now Waive Exhaustion Defense
As noted above, the Eleventh Circuit has long treated administrative exhaustion as a jurisdictional requirement under Title VII. Meaning an employer would never lose out on this defense, even if overlooked and brought to light years later. The Supreme Court has reversed course. Employers in the Eleventh Circuit dealing with a Title VII claim should now ensure exhaustion at the outset of any lawsuit – the failure to do so can turn a potentially barred claim into a viable (and needless) suit.
If you have any questions or concerns regarding the impact of this decision, please feel free to contact us by phone at 239-344-1100.