Supreme Court Grants Certiorari in Fort Bend County v. Davis

Court to Consider Whether Title VII’s Administrative Exhaustion Requirement Is Waivable January 22, 2019
On January 15, 2019, the Supreme Court granted certiorari in Fort Bend County v. Davis, No. 18-525, which presented the question of “[w]hether 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).

Title VII of the Civil Rights Act of 1964 requires employees seeking to bring employment discrimination claims to exhaust the administrative process by filing a charge with the Equal Employment Opportunity Commission (the “EEOC”) or comparable state agency before filing suit in federal court. 42 U.S.C. § 2000e-5(b), (f)(1). The Fourth, Ninth, and Eleventh Circuits have held that this 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.

In Fort Bend County v. Davis, Lois Davis brought claims against Fort Bend County, her former employer, alleging retaliation and religious discrimination under Title VII. Over four years into this litigation, Fort Bend County argued that Davis failed to exhaust the EEOC process on her religious discrimination claim. The district court held that the exhaustion requirement is jurisdictional and that Davis had failed to exhaust her administrative remedies, and therefore dismissed her religious discrimination claim. On appeal, the Fifth Circuit reversed, holding that the exhaustion requirement is not jurisdictional and that Fort Bend County had “forfeited its opportunity to assert this claim” based on its four-year delay. Davis v. Fort Bend Cty., 893 F.3d 300, 307–08 (5th Cir. 2018).

The Supreme Court will hear oral argument in the coming months and a decision is expected by the end of June 2019.

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