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Supreme Court to address Employment Discrimination issue

The Supreme Court granted cert on January 11 in a Title VII employment discrimination case. The Fifth Circuit held that an employee's failure to exhaust Title VII was a defense subject to waiver (thus ruling against the employer), and the Supreme Court will now address that question.

Since the Fourth Circuit was the first to address this issue (in the employer's favor), if the Supreme Court agrees with the Fourth Circuit's approach, that will reverse D.C. Circuit precedent which has adopted the employee-favorable approach.

Fort Bend County, Texas v. Davis, No. 18-525, http://www.scotusblog.com/case-files/cases/fort-bend-county-texas-v-davis/

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., requires plaintiffs to exhaust claims of employment discrimination with the EEOC before filing suit in federal court. Id. § 2000e-5(b), (f)(1).

The question presented is: "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."

Some excerpts from the employer's cert petition:

Nonetheless, the Circuits are intractably divided, 8-3, over whether courts may exercise jurisdiction over Title VII claims that plaintiffs never raised with the EEOC. Three Circuits-the Fourth, the Ninth, and the Eleventh-hold that Title VII's exhaustion requirement is jurisdictional, and that courts accordingly lack subject matter jurisdiction over claims that were never presented to the EEOC. Eight Circuits, however, disagree. They characterize the exhaustion requirement as a claim-processing rule that is subject to waiver, forfeiture, and other equitable defenses. Indeed, the Executive Branch itself is internally divided on the question, with the Department of Justice describing Title VII's exhaustion requirement as jurisdictional, and the EEOC siding with those courts that take the opposite view.

This Court's intervention is badly needed. The Circuits' disagreement will not resolve itself; on the contrary, the circuit split has dramatically hardened in recent years, with two Circuits (the Fifth and the Tenth) taking a side in the last four months alone. Furthermore, the question presented is of "considerable practical importance," given the significant consequences that deeming a requirement jurisdictional has for litigants and courts alike. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). And the view adopted by the majority of lower courts is incorrect: Title VII expressly refers to the exhaustion requirement in jurisdictional terms, and requires exhaustion to advance system-wide goals, not to protect case-specific interests that litigants should be free to waive. . . .

. . . . 1. As the split now stands, three Circuits-the Fourth, Ninth, and Eleventh Circuits-hold that Title VII's administrative exhaustion requirement is jurisdictional.

The Fourth Circuit first adopted this position more than two decades ago. In Davis v. North Carolina Department of Correction, 48 F.3d 134 (4th Cir. 1995), the plaintiff attempted to raise a Title VII claim even though he "never had a charge properly pending before the EEOC." Id.at 140. The Fourth Circuit explained that "[b]efore a federal court may assume jurisdiction over a claim under Title VII, * * * a claimant must exhaust the administrative procedures enumerated in 42 U.S.C. § 2000e-5(b)." Id.at 137. Furthermore, it continued, because exhaustion "is a jurisdictional prerequisite," it "must be alleged in a plaintiff's complaint," not merely raised as an affirmative defense. Id. at 140. That meant that, "the federal district court had no jurisdiction over [the plaintiff's] claim," and it should properly have been dismissed for lack of jurisdiction. Id.

The Fourth Circuit has repeatedly reaffirmed this position in the decades since. See, e.g., Hentosh v. Old Dominion Univ., 767 F.3d 413, 416 (4th Cir. 2014) ("[A] failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim." (quoting Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009)). Furthermore, the Fourth Circuit has repeatedly applied this position to dismiss Title VII claims for lack of jurisdiction because they were not properly raised in an EEOC charge-even if the plaintiff filed an EEOC charge raising other claims of discrimination. See, e.g., Tonkin v. Shadow Mgmt., Inc., 605 F. App'x 194, 194-195 (4th Cir. 2015) (per curiam) (dismissing unexhausted retaliation claim even though the plaintiff filed an EEOC charge alleging pregnancy discrimination); see also Ruffin v. Lockheed Martin Corp., 659 F. App'x 744, 746-747 (4th Cir. 2016) (per curiam); Whitaker v. Nash Cty., 504 F. App'x 237, 240 (4th Cir. 2013) (per curiam). . . .

. . . . 2. In contrast with the views of the Fourth, Ninth, and Eleventh Circuits, eight Circuits hold that administrative exhaustion is not a jurisdictional prerequisite to suit under Title VII.

The D.C. Circuit has held that a district court may permissibly consider the claim of a Title VII plaintiff who "ha[s] not filed a charge with the [EEOC]." De Medina v. Reinhardt, 686 F.2d 997, 1012 (D.C. Cir. 1982); see also Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011) (stating that "Title VII's exhaustion requirements are not jurisdictional," and skipping over exhaustion issue to address the merits). . . .

Alan R. Kabat

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