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David E. Morrison, a principal in the firm's Litigation and Labor & Employment groups, is quoted in "Must an Employee File an EEOC Discrimination Charge Before a Lawsuit?," published in the April 26, 2019, edition of The article discusses Fort Bend County v. Davis, a Title VII case pending before the United States Supreme Court. 

The central issue in the case is whether the EEOC's administrative complaint process is a jurisdictional requirement, which would bar the lawsuit altogether, or a mandatory claim-processing rule, which the employer could choose to waive.

"Put another way, if the filing of an EEOC charge is a jurisdictional requirement to filing a Title VII lawsuit, there can be no excuse for not complying," said David Morrison. Such rules promote an efficient court system and judicial process and provide certainty to employers that when plaintiffs fail to exhaust administrative remedies, they also lose their right to litigate those claims in court.

When the condition is waivable, on the other hand, the courts can evaluate whether there are circumstances when noncompliance may be excusable, Mr. Morrison noted. However, this would require the employer to vigilantly assert defenses to federal litigation to ensure that it does not waive the right to challenge the plaintiff's failure to exhaust administrative remedies, he said.

"If I were counting votes, I think that the court is going to side with the employee."
~ David Morrison

Oral Arguments

At the oral argument before the Supreme Court on April 22, the employer's counsel focused mainly on the textual interpretation of the statute. Justice Ruth Bader Ginsburg challenged her arguments, saying "It's one thing to say when Congress sets up a scheme where the agency is the equivalent of a court of first instance, it makes a decision and that decision is reviewed. But, in a Title VII case, the court is never reviewing the decision of the EEOC because [the agency doesn't] have any authority to make decisions."

Justice Brett Kavanaugh seemed most interested in the practical application of a proposed jurisdictional rule, Mr. Morrison noted. What type of burden would a jurisdictional rule impose on district courts across the country to ensure that each Title VII complaint was supported by a timely filed EEOC charge that correlated with the allegations contained in the complaint? The employee's counsel argued that such a rule would be unwieldy.

"It seemed that Kavanaugh agreed and may signal that he would side with the more liberal judges in interpreting Title VII as only creating an administrative exhaustion requirement, not a jurisdictional requirement," Mr. Morrison said.

Justice Samuel Alito Jr., however, focused on the fact that the EEOC is successful in helping some parties resolve their cases. Alito made this argument seemingly to support the employer's position, Morrison said. "By making the EEOC process an unwaivable condition to filing a lawsuit, the court would be encouraging parties to make efforts to conciliate before wasting precious judicial resources fighting in court."

President Donald Trump's administration presented a friend of the court argument supporting the EEOC and the employee. Among other things, the government argued that a jurisdictional rule would create "unfair surprise to plaintiffs," create "unjustified windfalls to defendants" and "could impede the commission's own efforts."

There are policy rationales available to both sides of the argument, Mr. Morrison observed. "If I were counting votes, I think that the court is going to side with the employee and conclude that the textual and policy reasons favor finding an administrative exhaustion rule—not a jurisdictional rule—governs the filing of a timely EEOC charge before filing a federal lawsuit," he said.