On April 3, 2019, NELA and The NELA Institute jointly filed an amicus brief with the U.S. Supreme Court, urging the Court to rule that Title VII's administrative-exhaustion requirement is a waivable claim-processing rule and not a jurisdictional prerequisite to suit. This case arose after employee Lois M. Davis filed an internal complaint alleging sexual harassment and assault by an individual in her department, who was investigated and eventually resigned. Soon thereafter, her supervisor, a friend of the alleged harasser, retaliated against Ms. Davis. When he required her to work on a Sunday—a time she had requested off for religious observance—she declined and was fired. Prior to her termination, Ms. Davis filed an official charge with the Texas Workforce Commission, a state agency with a work-sharing agreement with the EEOC, alleging sexual harassment and retaliation. After being fired, Ms. Davis amended her intake questionnaire, but not her charging document, to include religious discrimination.
Ms. Davis proceeded to take all her claims to court and went all the way through the summary judgment phase, including her appeal to the 5th Circuit (which she won) and Fort Bend County's petition for cert. (which the Supreme Court denied). It was only then, some five years after the litigation began, that the county asserted for the first time that Davis had failed to exhaust her administrative remedies by failing to reference religious discrimination on the correct state agency form. In our amicus brief, NELA and The NELA Institute argued, inter alia, that because filing a charge with the EEOC is complicated and most employees who file are laypersons who will file their charges without the assistance of counsel, a more flexible approach to administrative exhaustion is not only justified, but necessary to serve the public interest of effectively eliminating discrimination in the workplace.
Professor Michael L. Foreman and the Penn State Law Civil Rights Appellate Clinic served as principal drafters of the brief.