The U.S. Supreme Court has yet to decide whether to review the LGBT cases we've had our eye on, or the salary history case.

But they did agree last week to review whether (or to what extent) an individual must file a charge with the Equal Employment Opportunity Commission before filing a lawsuit under Title VII of the Civil Rights Act of 1964.

As most of you know, a person who wants to sue under Title VII (or the other federal anti-discrimination laws) must first file a charge of discrimination with the EEOC.

This is known in the legal world as "administrative exhaustion."

In jurisdictions like mine, a plaintiff's failure to exhaust administrative remedies before filing suit requires the court to dismiss Title VII claims. The exhaustion requirement is "jurisdictional," meaning that the court has no authority to adjudicate if the plaintiff didn't first file a charge. No exceptions.

But other courts have said that the rule isn't that hard and fast. According to them, failure to exhaust is certainly a defense that can and should be raised by the employer, and it's almost always ground for dismissal. However, these courts say, there can be situations in which the defense is waived, or in which the employer is "estopped" (legally prevented because of its own actions or inactions) from asserting the defense. And in those situations, the lawsuit can go forward.

Are you exhausted yet?

The case that the Supreme Court has agreed to review is from the U.S. Court of Appeals for the Fifth Circuit, Davis v. Fort Bend County. The Fifth Circuit held that exhaustion of administrative remedies was not a "jurisdictional" requirement but "a prudential prerequisite to suit." 

And because the defendant in this particular case "waited five years and an entire round of appeals all the way to the Supreme Court before it argued that [the plaintiff] failed to exhaust," the Fifth Circuit panel found that the defense was waived and the lawsuit could proceed.

On the exhaustion issue, a number of U.S. Circuit Courts of Appeal agree with the Fifth -- namely, the First, Second, Third, Sixth, Seventh, Tenth, and District of Columbia.

Hmmm . . . that sounds like just about everybody . . . 

Don't know your circuits without a scorecard? Check our handy guide!

The circuits who are swimming against the tide are the Fourth (my circuit), the Ninth, and the Eleventh.

So the Supreme Court will, in the not-too-distant future, resolve this issue once and for all: 

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.

And, hopefully, they'll someday decide to review those other cases we've been following for what seems like forever. 

P.S. Now that the Supreme Court is reviewing the Fifth Circuit case at the request of the defendant, the name is Fort Bend County v. Davis.

P.P.S. Justice Gorsuch was already on the Supreme Court when the Tenth Circuit decided that administrative exhaustion was not jurisdictional, and Justice Kavanaugh was not on the D.C. Circuit panel that decided that circuit's exhaustion case.

Image Credit: From flickr, Creative Commons license, by bark.