The NCSL Blog


By Lisa Soronen

Before an employee alleging employment discrimination under Title VII (on the basis of race, color, religion, sex or national origin) may bring a lawsuit in federal court, he or she must exhaust administrative remedies by bringing formal charges with the Equal Employment Opportunity Commission (EEOC), or equivalent state agency. 

Supreme CourtThe question the Supreme Court will decide in Fort Bend County v. Davis is whether a lawsuit is barred if an employee fails to exhaust administrative remedies with the EEOC first.

Lois Davis claims she was fired for not reporting to work on a Sunday (she attended a church service), and, in retaliation for reporting that, she was sexually harassed and sexually assaulted by a superior.

She filed sexual harassment and retaliation charges, but not religious discrimination 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, which pointed out she didn’t exhaust her administrative remedies by filing a charge of religious discrimination with the Texas Workforce Commission. 

Fort Bend argues that administrative exhaustion is a jurisdictional requirement of Title VII, meaning if an employee fails to satisfy it, a court cannot hear the case. Davis argues that exhaustion is a “waivable claim-processing requirement” and that Fort Bend waived it by waiting five years “and an entire round of appeals all the way to the Supreme Court” before raising it. 

The U.S. Court of Appeals for the Fifth Circuit held that the failure to exhaust administrative remedies is a waivable rule, not a jurisdictional rule that would bar the lawsuit from proceeding. The lower court reasoned: “Here, Congress did not suggest—much less clearly state—that Title VII’s administrative exhaustion requirement is jurisdictional, and so we must treat this requirement as non-jurisdictional in character. The statute says nothing about a connection between the EEOC enforcement process and the power of a court to hear a Title VII case.”

In its petition for review, Fort Bend strenuously argues that the failure to exhaust is a jurisdictional requirement. Title VII states that once the EEOC declines to act on a charge of discrimination, “a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved.” According to Fort Bend: “This text refers to the exhaustion requirement in ‘jurisdictional language’: It limits the circumstances in which an ‘action’ may be ‘brought.’ That language is ‘similar to other statutes that this Court has deemed jurisdictional.’”

Fort Bend also argues Congress would not have created the EEOC investigation and resolution process only to have it circumvented. About 60,000 employment discrimination charges are filed with the EEOC annually. “If the exhaustion requirement were non-jurisdictional, many of those plaintiffs could bring their claims directly to court, flooding the federal courts with additional employment litigation.” 

Lisa Soronen is executive director of the State and Local Center Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.