Supreme Court to Hear Argument Today on Whether Review by EEOC is Jurisdictional Requirement

Today, the U.S. Supreme Court will hear argument in Fort Bend County v. Davis (U.S. 2019) regarding a plaintiff’s failure to state a claim in her charge filed with the Equal Employment Opportunity Commission (EEOC), then subsequently attempting to sue her former employer for it in federal court.

Before she was fired from Fort Bend County, Lois Davis filled out an intake questionnaire and filed a charge of discrimination with the Texas Workforce Commission alleging sexual harassment and retaliation. Under a work-sharing agreement between the two agencies, her charge was automatically also filed with the EEOC. Davis was subsequently fired. She then amended her intake questionnaire—but not her charge of discrimination—by writing “religion” in the section relating to the types of harm she suffered. As a result, the EEOC never investigated the allegation of religious discrimination.

Davis later sued Fort Bend County for sexual harassment, sex discrimination, religious discrimination, and retaliation. Her claims were dismissed by the U.S. District Court for the District of Indiana, but the Fifth Circuit Court of Appeals sent her religious discrimination claim back to the District Court for redetermination. At that time, Fort Bend County argued that Davis had failed to exhaust her administrative remedies because she had not alleged religious discrimination in her EEOC charge, and that therefore, the religious discrimination charge should be dismissed.

The issue before the Court is whether Fort Bend County will be allowed to raise the issue of failure to exhaust administrative remedies at this stage, or whether it is now too late.

Fort Bend County will attempt to persuade the Court that Davis’s failure to exhaust her administrative remedies is a “jurisdictional” shortcoming, meaning that the Court has no jurisdiction to hear her claim. Since jurisdictional claims need not be made at any particular time, if the County succeeds with this argument, Davis’s case will be dismissed.

Davis will argue that while administrative exhaustion is, in fact, mandatory, that alone does not make the requirement jurisdictional.

While a seemingly minor point, a victory for Fort Bend County could give defense attorneys a powerful tool for ensuring that claims are properly reviewed by the EEOC before they can proceed to trial.