It has been 55 years since Congress passed the Civil Rights Act of 1964. That statute prohibits discrimination in a variety of activities, public and private, and Title VII of the Act prohibits discrimination in employment on the basis of race, national origin, gender, religion, and reprisal for opposing or pursuing claims of such discrimination.
When Congress passed Title VII, it made clear that employees could not simply march into court and file a claim. Rather, the law states that, while employees eventually can go to court, they must first “exhaust their remedies” with an agency: private employees must first file a charge with the Equal Employment Opportunity Commission; state and local employees must contact their state or local civil rights office; and federal employees must file an EEO complaint with their employing agency.
The question is, what happens if an employee tries to file suit in court without first exhausting his or her remedies? Or, more likely, if the employee has exhausted on some claims, but not on one or more others? What happens then? Almost always, the lawsuit (or the specific claim in the lawsuit) that was not exhausted will be dismissed by the court for “failure to exhaust.” “Almost always,” however, is not “always,” and this month the Supreme Court actually found the exception to the rule.
In Fort Bend Cnty., Tex. v. Davis, Lois Davis worked in information technology for Fort Bend County, in Texas. In 2010, she reported that her boss was sexually harassing her; when her boss resigned, she alleged that her new supervisor began reducing her work responsibilities in retaliation for her report. In February and March 2011, Davis submitted a questionnaire and then a charge to the EEOC. Thereafter, Davis was fired when, after being told to report for work on a Sunday, she told her supervisor that she had a church commitment – she offered to arrange a replacement – and didn’t show up for the Sunday work. While she believed her firing was based on religious discrimination, Davis did not include that claim on any of the paperwork she filed with the EEOC.
In January 2012, Davis filed a discrimination lawsuit in district court in Texas. She alleged religious discrimination and retaliation for reporting sexual harassment. Fort Bend moved to dismiss the case, arguing that it did not discriminate or retaliate against Davis. The district court agreed with Fort Bend and dismissed the case. Davis appealed to the Court of Appeals, which agreed that the retaliation claim was over but held that Davis’ religious discrimination claim could proceed. Fort Bend appealed unsuccessfully to the Supreme Court, and the case returned to the district court in 2015.
In 2016, Fort Bend moved to dismiss Davis’ claim of religious discrimination. For the first time, though, Fort Bend argued that the courts lacked jurisdiction over Davis’ religion claim “because she had not stated such a claim in her EEOC charge.” The district court agreed and held that because Davis had to exhaust her remedies on any claim she wanted to raise in court, her failureto mention the religion claim with the EEOC meant that the court did not have jurisdiction to decide the claim. The district court dismissed. Davis again appealed to the Court of Appeals, which reversed the district court. According to the appeals court, Title VII’s charge filing requirement is not jurisdictional, but is instead a “prudential prerequisite” to filing the lawsuit. Fort Bend appealed to the Supreme Court, which agreed with the appeals court and held that Title VII’s requirement that an employee first exhaust her remedies on a claim before filing suit is not jurisdictional.
The difference between jurisdictional and not jurisdictional is critical, and not just a matter of interest to lawyers. Courts can only decide cases over which they have “jurisdiction,” i.e., Congress has given them the power to decide this particular case. In other words, no jurisdiction, no case. Jurisdiction is so important that it cannot be waived: a party, or the court itself, can decide at any time, even after months or years, that the court lacks jurisdiction and must dismiss.
If jurisdiction is not the issue, a defendant may still seek dismissal, but only on a ground that is raised as soon as possible. If a defense is available, but is not raised early, then it is considered “waived” and cannot be raised later in the case. This is what happened to Fort Bend: although Davis filed her lawsuit in 2012, Fort Bend failed until 2016 to object in the Court of Appeals and the Supreme Court that the claim of religious discrimination had not been raised with the EEOC. According to the Supreme Court’s decision in Fort Bend, “an objection based on a mandatory claim-processing rule may be forfeited ‘if the party asserting the rule waits too long to raise the point.’” There may be other objections to a particular claim, but because exhaustion is not a jurisdictional requirement, these also have to be raised early.
Early accounts of the Supreme Court’s decision in Fort Bend interpreted the decision to mean that employees no longer have to exhaust their remedies before filing in court. Quite clearly, that is not the case. Any employee who files a claim that has not been properly exhausted as the law requires will have that claim dismissed – unless, of course, the employer does not raise that argument at the appropriate opportunity. After Fort Bend, lawyers for defendant employers have to be more careful about the timing of certain objections. And lawyers for employees still need to be sure that their clients have exhausted their administrative remedies with the EEOC before filing in court.
George Chuzi
Kalijarvi, Chuzi, Newman & Fitch P.C. has attorneys experienced in discrimination law who can advise and assist employees, federal and private, on filing appropriate complaints.