Insight

Supreme Court Agrees to Consider Conflict Over Title VII Administrative Exhaustion Requirement

Supreme Court Agrees to Consider Conflict Over Title VII Administrative Exhaustion Requirement

Mark E. Stamelos

Mark E. Stamelos

December 21, 2022 06:45 PM

Supreme Court Agrees to Consider Conflict Over Title VII Administrative Exhaustion Requirement

The U.S. Supreme Court recently agreed to consider whether federal courts have the authority to waive a Title VII plaintiff’s failure to exhaust administrative remedies before the EEOC, or state equivalent, before filing a complaint in federal court. Under Title VII of the Civil Rights Act of 1964, an individual who brings a claim for employment discrimination must first attempt to resolve the claim with the EEOC before filing a lawsuit in federal court. Generally, this rule is designed to promote order in federal courts by giving the EEOC an opportunity to vet claims of employment discrimination before they become the subject of federal court litigation. Eight federal appeals courts, however, have found the failure to raise an issue in an administrative charge to be a waivable affirmative defense, which the employer must timely raise and for which the employer bears the burden of proof. If the employer does not timely raise the affirmative defense, the court will consider it waived and will permit the factfinder to consider the issue, even though the plaintiff failed to exhaust administrative remedies. Conversely, three federal appeals courts find this requirement to be a jurisdictional prerequisite, permitting the employer to raise the plaintiff’s failure to exhaust administrative remedies at any time during the litigation and dismissing issues not brought before the EEOC. The Eighth Circuit is the only federal appeals court that has not issued a decision on this issue.

The Supreme Court will primarily determine which party bears the burden of raising and proving whether the complaining party has exhausted its administrative remedies through the EEOC. As many of the nation’s employers are currently within a “waivable affirmative defense” jurisdiction, a decision from the Supreme Court to follow this majority rule would simply perpetuate the need for employers to remain vigilant in understanding the claims brought against them before the EEOC compared to those brought in federal court, and to raise the affirmative defense when necessary. On the other hand, if the Court determines the exhaustion requirement is a jurisdictional prerequisite to filing a federal lawsuit under Title VII, employers could then seek dismissal of any claim not brought before the EEOC or state equivalent, regardless of how far the issue is litigated in federal court.

The case bringing this issue before the Court is Fort Bend County v. Davis. FordHarrison will continue to monitor developments in this case, and will provide more information when the Supreme Court issues its ruling. If you have any questions regarding this case or any other labor or employment law issues, please feel free to contact the author of this Alert, Mark E. Stamelos, mstamelos@fordharrison.com, the managing partner of our Nashville office. You may also contact the FordHarrison attorney with whom you usually work.

Related Articles

Attacked From All Sides: What Is Happening in the World of Restrictive Covenants?


by Christine Bestor Townsend

One employment lawyer explains how companies can navigate challenges of federal and state governmental scrutiny on restrictive covenant agreements.

Illustration of two men pulling on string with blue door between them

IN PARTNERSHIP

Businesses Must Prepare for the New Department of Labor Independent Contractor Rule


by Kirby Black and Steven T. Clark

Two employment law lawyers explain how a new DOL rule making it more likely workers will be classified as employees, rather than independent contractors, has caused legal challenges and prompted businesses to reassess worker status and policies.

Block with outline of person slightly out of place from other blocks

IN PARTNERSHIP

The Long, Short, Thick and Thin of It


by Avrohom Gefen

“Appearance discrimination” based on employees’ height and weight is the latest hot-button issue in employment law. Here’s a guide to avoid discrimination.

Woman stands in front of mirror holding suit jacket

The Employment Pandemic


by Meredith Caiafa and Sarah Greene

The pandemic has had far-reaching effects on employment law since it officially took hold in 2020, but the litigation and lawmaking surrounding it are mutating faster than the variants. Here’s how lawmakers and businesses can keep up.

Employment Law During COVID-19

Destiny Fulfilled


by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

NYC Pay Transparency Law Gets New Start Date


by Justin Smulison

This historic law regarding pay transparency in New York City originally scheduled to take effect last week was rescheduled to Fall 2022.

NYC Stand Resolute on Pay Transparency

Evolving Marijuana Laws and the Workplace


by Tess P. Anglin

How can employers enforce statutes that differ from state to state?

Red image of a marijuana leaf

Nina T. Pirrotti - New Haven 2020 Lawyer of the Year


by Best Lawyers

Employment Law - Individuals New Haven, Connecticut

Nina Pirrotti

WATCH: A Landmark Win for LGBTQ Rights


by Best Lawyers

Two top employment attorneys join the CEO of Best Lawyers to discuss the landmark Supreme Court ruling protecting gay and transgender employees.

Panel: LGBTQ SCOTUS Ruling

Paula Greisen - Denver 2020 Lawyer of the Year


by Best Lawyers

Litigation - Labor and Employment Denver, CO

Paula Greisen

Don’t Fall Asleep at the Wheel


by Paul Goatley

Identify Exhaustion or Risk Waiving a Defense.

Don’t Fall Asleep at the Wheel

In the News: Georgia


by Nicole Ortiz

A summary of newsworthy content from Colorado lawyers and law firms.

In the News Georgia 2018

Employee Benefits and Executive Compensation Advisory


by John Hickman & Ashley Gillihan

Navigating the Winding Highway of Wellness Program Compliance: A GPS for the EEOC’s Wellness Program Rules

Employee Benefits

Trending Articles

Presenting The Best Lawyers in Australia™ 2025


by Best Lawyers

Best Lawyers is proud to present The Best Lawyers in Australia for 2025, marking the 17th consecutive year of Best Lawyers awards in Australia.

Australia flag over outline of country

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

Announcing The Best Lawyers in New Zealand™ 2025 Awards


by Best Lawyers

Best Lawyers is announcing the 16th edition of The Best Lawyers in New Zealand for 2025, including individual Best Lawyers and "Lawyer of the Year" awards.

New Zealand flag over image of country outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing The Best Lawyers in Japan™ 2025


by Best Lawyers

For a milestone 15th edition, Best Lawyers is proud to announce The Best Lawyers in Japan.

Japan flag over outline of country

The Best Lawyers in Singapore™ 2025 Edition


by Best Lawyers

For 2025, Best Lawyers presents the most esteemed awards for lawyers and law firms in Singapore.

Singapore flag over outline of country

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

How Much Is a Lawyer Consultation Fee?


by Best Lawyers

Best Lawyers breaks down the key differences between consultation and retainer fees when hiring an attorney, a crucial first step in the legal process.

Client consulting with lawyer wearing a suit

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Presenting the 2024 Best Lawyers Employment and Workers’ Compensation Legal Guide


by Best Lawyers

The 2024 Best Lawyers Employment and Workers' Compensation Legal Guide provides exclusive access to all Best Lawyers awards in related practice areas. Read below and explore the legal guide.

Illustration of several men and women in shades of orange and teal

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Attacked From All Sides: What Is Happening in the World of Restrictive Covenants?


by Christine Bestor Townsend

One employment lawyer explains how companies can navigate challenges of federal and state governmental scrutiny on restrictive covenant agreements.

Illustration of two men pulling on string with blue door between them