No. 18-525

In the Supreme Court of the United States

 

FORT BEND COUNTY, TEXAS, PETITIONER

v.

LOIS M. DAVIS

 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATE AS AMICUS CURIAE SUPPORTING RESPONDENT

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
ERIC S. DREIBAND
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
JONATHAN C. BOND
Assistant to the Solicitor
General
BONNIE I. ROBIN-VERGEER
DAYNA J. ZOLLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 

JAMES L. LEE
Deputy General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
ELIZABETH E. THERAN
Assistant General Counsel
GAIL S. COLEMAN
Attorney
U.S. Equal Employment
Opportunity Commission
Washington, D.C. 20507

 

QUESTION PRESENTED

Whether the requirement in Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.,
to file a charge with the Equal Employment Opportunity
Commission is a jurisdictional prerequisite to
suit that is immune to ordinary principles of forfeiture
and waiver.

(I)

TABLE OF CONTENTS

                                                                                                                     Page

Interest of the United States....................................................... 1
Statutory and regulatory provisions involved ........................... 2
Statement ...................................................................................... 2
Summary of argument ................................................................. 8
Argument:
Title VII’s charge-filing requirement is not a
jurisdictional prerequisite to suit ....................................... 10
A. Under this Court’s clear-statement rule,
Title VII’s charge-filing requirement is not
jurisdictional because Congress did not clearly
state otherwise ............................................................ 11
1. A prerequisite to relief is not jurisdictional
unless Congress clearly states that it is ......... 11
2. Title VII’s text and context do not clearly
indicate that the charge-filing requirement
is jurisdictional .................................................. 15
B. Petitioner’s contention that Title VII’s chargefiling
requirement is an “exhaustion” rule
exempt from the clear-statement rule lacks
merit ............................................................................. 23
C. The statutory purposes do not require treating
Title VII’s charge-filing requirement as
jurisdictional ............................................................... 29
Conclusion ................................................................................... 34

Appendix — Statutory and regulatory provisions ................ 1a

TABLE OF AUTHORITIES

Cases:

Air Courier Conference of Am. v. American Postal
Workers Union, AFL-CIO, 498 U.S. 517 (1991) ........... 16
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ..................................................... 19, 20

(III)

 

IV

Cases—Continued:                                                             Page

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ...... 21
Alexander v. Sandoval, 532 U.S. 275 (2001) .................... 16
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) ............ passim
Arizona ex rel. Horne v. Geo Grp., Inc.,
816 F.3d 1189 (9th Cir. 2016),
cert. denied, 137 S. Ct. 623 (2017) ..................................... 31
Baldwin Cnty. Welcome Ctr. v. Brown,
466 U.S. 147 (1984).............................................................. 33
Bell v. Hood, 327 U.S. 678 (1946) ...................................... 18
Bowles v. Russell, 551 U.S. 205 (2007) ................................ 12
Chandler v. Roudebush, 425 U.S. 840 (1976) ...................... 26
Day v. McDonough, 547 U.S. 198 (2006) ............................. 14
EEOC v. Commercial Office Prods. Co.,
486 U.S. 107 (1988)................................................................ 3
EEOC v. Shell Oil Co., 466 U.S. 54 (1984) ................. 2, 4, 29
EEOC v. Sterling Jewelers Inc.,
801 F.3d 96 (2d Cir. 2015),
cert. denied, 137 S. Ct. 47 (2016) ......................................... 4
Elgin v. Department of the Treasury,
567 U.S. 1 (2012) ................................................................. 27
EPA v. EME Homer City Generation, L.P.,
572 U.S. 489 (2014) ............................................... 13, 21, 24
Franks v. Bowman Transp. Co.,
424 U.S. 747 (1976) ..................................................... 19, 20
General Tel. Co. of the Nw., Inc. v. EEOC,
446 U.S. 318 (1980)................................................ 4, 5, 28, 31
Gonzalez v. Thaler, 565 U.S. 134 (2012) ...................... 12, 13
Hallstrom v. Tillamook Cnty., 493 U.S. 20 (1989) .......... 14
Hamer v. Neighborhood Hous. Servs. of Chi.,
138 S. Ct. 13 (2017) ......................................... 12, 13, 19, 24
Henderson v. Shinseki, 562 U.S. 428 (2011) ..................... 13

 

V

Cases—Continued:                                                                 Page

John R. Sand & Gravel Co. v. United States,
552 U.S. 130 (2008).............................................................. 12
Jones v. Bock, 549 U.S. 199 (2007) ..................................... 21, 24
Josephs v. Pacific Bell, 443 F.3d 1050 (9th Cir. 2006) ....... 33
Kontrick v. Ryan, 540 U.S. 443 (2004) ................................ 14
Mach Mining, LLC v. EEOC,
135 S. Ct. 1645 (2015) ............................................... 2, 29, 30
Mathews v. Eldridge, 424 U.S. 319 (1976) .................... 24, 25
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).............................................................. 20
McKee v. McDonnell Douglas Tech. Servs. Co.,
700 F.2d 260 (5th Cir. 1983) ............................................... 33
National R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002).............................................................. 33
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019) ..... 14
Occidental Life Ins. Co. v. EEOC,
432 U.S. 355 (1977) ........................................................... 4, 5
Patchak v. Zinke, 138 S. Ct. 897 (2018) ....................... 17, 24
Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 (2010)..................................................... passim
Rockwell Int’l Corp. v. United States,
549 U.S. 457 (2007) ..................................................... 16, 17
Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145 (2013).................................................. 11, 13, 33
Sims v. Apfel, 530 U.S. 103 (2000) ....................................... 28
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998) ........................................ 11, 16, 18, 21, 33
Thompson v. North Am. Stainless, LP,
562 U.S. 170 (2011) .......................................................... 16
Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994) ....................................................... 9, 27

 

VI

Cases—Continued:                                                              Page

Union Pac. R.R. v. Brotherhood of Locomotive
Eng’rs & Trainmen Gen. Comm. of Adjustment,
558 U.S. 67 (2009) ................................................... 13, 21, 24
United States v. Dalm, 494 U.S. 596 (1990) ..................... 22
United States v. Kwai Fun Wong,
135 S. Ct. 1625 (2015) .................................. 12, 13, 15, 19, 24
Woodford v. Ngo, 548 U.S. 81 (2006) ........... 9, 21, 24, 26, 27
Zipes v. Trans World Airlines, Inc.,
455 U.S. 385 (1982)......................................... 9, 18, 18, 20, 21

Statutes and regulations:

Civil Rights Act of 1964, Pub. L. No. 88-352,
Tit. VII, 78 Stat. 253 (42 U.S.C. 2000e et seq.) ................... 1
§ 706(e), 78 Stat. 260 ......................................................... 4
§ 706(f ), 78 Stat. 260 ...................................................... 4, 5
§ 707(a), 78 Stat. 261 ......................................................... 4
42 U.S.C. 2000e-2 ............................................................... 2
42 U.S.C. 2000e-4(a) .......................................................... 2
42 U.S.C. 2000e-5 ................................................. 22, 23, 1a
42 U.S.C. 2000e-5(a) .................................................... 2, 1a
42 U.S.C. 2000e-5(b)........................... 1, 2, 3, 5, 26, 30, 1a
42 U.S.C. 2000e-5(c) .................................................... 3, 3a
42 U.S.C. 2000e-5(e)(1) ..................................... passim, 4a
42 U.S.C. 2000e-5(f )(1) ................................... passim, 6a
42 U.S.C. 2000e-5(f )(3) ........................... 4, 5, 10, 18, 19, 8a
42 U.S.C. 2000e-8(a) .................................................... 4, 29
42 U.S.C. 2000e-12(a) ........................................................ 2
42 U.S.C. 2000e-16 ............................................. 22, 23, 15a
42 U.S.C. 2000e-16(a) ................................................ 5, 15a
42 U.S.C. 2000e-16(c) ...................................22, 23, 25, 18a
42 U.S.C. 2000e-16(b)-(f ) .......................................... 5, 16a

 

VII

Statutes and regulations—Continued:                            Page

Equal Employment Opportunity Act of 1972,
Pub. L. No. 92-261, 86 Stat. 103 .......................................... 5
False Claims Act, 31 U.S.C. 3729 et seq. .......................... 16
31 U.S.C. 3730(e)(4)(A) (2006) ........................................ 17
17 U.S.C. 411(a) ..................................................................... 13
28 U.S.C. 1331 ............................................. 4, 10, 17, 18, 25, 1a
28 U.S.C. 1332 ........................................................................ 25
42 U.S.C. 405(g) ..................................................................... 25
42 U.S.C. 405(h) ..................................................................... 25
42 U.S.C. 1997e(a)...................................................... 21, 24, 26
29 C.F.R. Pt. 1601:
Section 1601.12(a) ...................................................... 2, 20a
Section 1601.12(b) .................................................. 2, 3, 20a
Section 1601.13(a)(3) ................................................. 3, 21a
Section 1601.13(b)(1) ................................................. 3, 24a
Section 1601.14(a) .................................................... 30, 27a
Section 1601.19(a) .................................................................. 3
Section 1601.28(a)(2) ................................................. 5, 28a
Section 1601.28(a)(3) ..................................................... 3, 28a

Miscellaneous:

EEOC:
Fair Employment Practices Agencies (FEPAs)
and Dual Filing, https://www.eeoc.gov/
employees/fepa.cfm (last visited Apr. 3, 2019) ......... 3
Title VII of the Civil Rights Act of 1964 Charges,
FY 1997-FY 2017, https://www.eeoc.gov/
eeoc/statistics/enforcement/titlevii.cfm
(last visited Apr. 3, 2019) .......................................... 30
Donald R. Livingston & Reed L. Russell, EEOC
Litigation and Charge Resolution (2d ed. 2014) ................. 3

 

In the Supreme Court of the United States

No. 18-525

 

FORT BEND COUNTY, TEXAS, PETITIONER

v.

LOIS M. DAVIS

 

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

 

INTEREST OF THE UNITED STATES

This case presents the question whether the requirement
in Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. 2000e et seq., to file a charge
of discrimination with the Equal Employment Opportunity
Commission (EEOC or Commission) is a jurisdictional
prerequisite to suit. The EEOC investigates
charges of employment discrimination under Title VII
and seeks to eliminate unlawful practices through informal
methods. 42 U.S.C. 2000e-5(b). The EEOC and
the Attorney General also have authority to bring civil
actions against private employers and state and local
governmental employers, respectively, for Title VII
violations. 42 U.S.C. 2000e-5(f )(1). The United States
has a substantial interest in the proper interpretation
of Title VII.

(1)

 

2

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are reproduced
in an appendix to this brief. App., infra, 1a-31a.

STATEMENT

1. Title VII prohibits discrimination in employment
based on race, color, religion, sex, or national origin.
42 U.S.C. 2000e-2. It establishes a “detailed multi-step
procedure” to enforce that prohibition. Mach Mining,
LLC v. EEOC, 135 S. Ct. 1645, 1649 (2015). The process
“generally starts when ‘a person claiming to be aggrieved’
files a charge of an unlawful workplace practice with the
EEOC,” ibid. (citation omitted), which Congress charged
with investigating and seeking to prevent discrimination,
42 U.S.C. 2000e-4(a), 2000e-5(a) and (b).
a. A Title VII charge “is not the equivalent of a complaint
initiating a lawsuit.” EEOC v. Shell Oil Co.,
466 U.S. 54, 68 (1984). A charge filed by an individual
merely notifies the EEOC of the alleged discrimination,
providing a starting point for the EEOC’s investigation.
Ibid. The statute prescribes only that “[c]harges shall
be in writing under oath or affirmation and shall contain
such information and be in such form as the Commission
requires.” 42 U.S.C. 2000e-5(b). Pursuant to statutory
rulemaking authority, 42 U.S.C. 2000e-12(a), the EEOC
has further specified that a charge should contain “[a]
clear and concise statement of the facts, including pertinent
dates, constituting the alleged unlawful employment
practices”; the employer’s contact information; and
a statement of whether the charging party has instituted
proceedings with a state or local agency. 29 C.F.R.
1601.12(a). Nonetheless, a charge is adequate if it contains
“a written statement sufficiently precise to identify
the parties, and to describe generally the action or
practices complained of.” 29 C.F.R. 1601.12(b).

 

3

Section 2000e-5(e)(1) of Title VII provides that “[a]
charge under this section shall be filed” with the EEOC
“within one hundred and eighty days after the alleged
unlawful employment practice occurred.” 42 U.S.C.
2000e-5(e)(1). If the alleged discrimination occurred in a
State or political subdivision that has its own agency with
authority to grant or seek relief, Title VII instead directs
the individual alleging discrimination to commence proceedings
with that agency first. See 42 U.S.C. 2000e-5(c).
If the state or local proceedings do not resolve the matter,
the individual has “three hundred days after the
alleged unlawful employment practice occurred,” or
30 days after being notified that those proceedings have
been “terminated”—“whichever is earlier”—to file a
charge with the EEOC. 42 U.S.C. 2000e-5(e)(1). In practice,
however, an individual typically need only file a single
charge with either the EEOC or the state or local
agency. Pursuant to EEOC regulations and worksharing
agreements with state and local agencies, whichever
entity receives the charge will also file it with the other.
See 29 C.F.R. 1601.13(a)(3) and (b)(1); EEOC, Fair
Employment Practices Agencies (FEPAs) and Dual Filing,
https://www.eeoc.gov/employees/fepa.cfm; EEOC
v. Commercial Office Prods. Co., 486 U.S. 107, 112 (1988).¹
Upon receiving a charge, the EEOC must notify
the employer and investigate the allegations. 42 U.S.C.
2000e-5(b). The EEOC has broad discretion regarding

________

¹ An individual typically may amend an existing charge in certain
circumstances until the EEOC concludes its processes; the amendment
relates back to the date of the original filing if it is related to or
grows out of the subject matter of the original charge. See 29 C.F.R.
1601.12(b), 1601.19(a), 1601.28(a)(3); see also Donald R. Livingston &
Reed L. Russell, EEOC Litigation and Charge Resolution 161 (2d ed.
2014).

 

4

the nature and extent of its investigation. See, e.g.,
EEOC v. Sterling Jewelers Inc., 801 F.3d 96, 98 (2d Cir.
2015), cert. denied, 137 S. Ct. 47 (2016). It also may obtain
access to “any evidence of any person being investigated”
that is “relevant to the charge under investigation.”
42 U.S.C. 2000e-8(a).

b. Congress originally hoped employers would comply
voluntarily with Title VII. Shell Oil Co., 466 U.S. at 77.
As first enacted, Title VII authorized the EEOC only to
investigate charges and to engage in informal conciliation
and persuasion. Occidental Life Ins. Co. v. EEOC,
432 U.S. 355, 358 (1977). If those efforts failed, the EEOC
lacked enforcement authority. Id. at 358-359. Instead,
the aggrieved person could file suit against the employer.
Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII,
§ 706(e), 78 Stat. 260. Because in 1964 the “umbrella provision
for federal question jurisdiction,” 28 U.S.C. 1331,
included an amount-in-controversy requirement, Congress
also enacted in Title VII a separate provision
granting district courts jurisdiction over “ ‘actions
brought under this subchapter.’ ” Arbaugh v. Y & H
Corp., 546 U.S. 500, 505-506 (2006) (quoting 42 U.S.C.
2000e-5(f )(3)); see § 706(f ), 78 Stat. 260. The Attorney
General could intervene in cases of general public
importance and could bring his own suits challenging
patterns or practices of discrimination. §§ 706(e), 707(a),
78 Stat. 260-261.

By 1972, however, Congress recognized that the
“failure to grant the EEOC meaningful enforcement
powers ha[d] proven to be a major flaw in the operation
of Title VII.” General Tel. Co. of the Nw., Inc. v. EEOC,
446 U.S. 318, 325 (1980) (General Telephone) (citation
omitted). Accordingly, Congress amended Title VII to
establish the current enforcement scheme. Occidental

 

5

Life Ins. Co., 432 U.S. at 359; see Equal Employment
Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103.
The 1972 amendments preserved the EEOC’s administrative
role and retained the private right of action, but
they also granted the EEOC authority to bring suit “to
secure more effective enforcement of Title VII.” General
Telephone, 446 U.S. at 325; accord Occidental Life
Ins. Co., 432 U.S. at 368. The amendments did not alter
Title VII’s jurisdictional provision. Compare 42 U.S.C.
2000e-5(f )(3), with § 706(f ), 78 Stat. 260.

As relevant here, Title VII currently provides that,
if the EEOC finds “reasonable cause to believe that the
charge is true,” it must first “endeavor to eliminate
[the] alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion.”
42 U.S.C. 2000e-5(b). If the EEOC is unable to secure a
conciliation agreement it finds acceptable with a private
employer named in a charge, the EEOC may sue the
employer. 42 U.S.C. 2000e-5(f )(1). If the employer is a
state or local government, the EEOC “shall refer the case
to the Attorney General,” who may bring a civil action.
Ibid.²

If the EEOC does not find that the allegations have
merit, it must dismiss the charge and notify the individual
of her right to sue. 42 U.S.C. 2000e-5(b) and (f )(1).
If the EEOC (or Attorney General for public employers)
has neither brought suit nor reached a resolution
within 180 days after the charge is filed, the individual
is entitled to a right-to-sue notice upon request. 42 U.S.C.
2000e-5(f )(1); see 29 C.F.R. 1601.28(a)(2) (EEOC may

__________

² Title VII also prohibits employment discrimination by the federal
government. 42 U.S.C. 2000e-16(a). A separate procedural
regime, not at issue here, governs the processing and adjudication
of claims by federal employees. 42 U.S.C. 2000e-16(b)-(f ).

 

6

issue right-to-sue letter sooner if it certifies that it cannot
complete investigation in 180 days).

2. a. In 2007, petitioner hired respondent as a supervisor
in its information-technology department. Pet.
App. 17a n.2. In 2010, respondent filed a complaint with
petitioner’s human-resources department alleging that
another employee had sexually harassed and assaulted
her. Ibid. Petitioner placed respondent on leave while it
investigated her complaint. Ibid. According to respondent,
when she returned from leave the following month,
her new supervisor began retaliating against her by
reducing and changing her workload. Ibid.; J.A. 77-78, 80.

In February 2011, respondent submitted an intake
questionnaire alleging employment discrimination to the
Texas Workforce Commission (State Commission), which
has a worksharing agreement with the EEOC. Pet. App.
19a; J.A. 73-74. The following month, respondent filed a
formal charge with the State Commission, which treated
that charge as filed with the EEOC on the date respondent
submitted the intake questionnaire. J.A. 80. Respondent’s
charge stated that “[she] believe[d] [she] ha[d]
been discriminated against * * * because of [her]
gender/sex, female, and in retaliation for [her] complaint
of harassment.” Ibid. She also checked boxes indicating
that she was complaining of discrimination based on
“Sex” and “Retaliation.” Ibid. (capitalization altered).

b. In March 2011, petitioner requested that all
information-technology employees report to work one
weekend in July. Pet. App. 18a n.2. Respondent informed
her supervisor she could not work that Sunday due to a
religious commitment at her church, and she arranged
for a replacement. Id. at 18a n.2, 19a. Her supervisor
refused to approve her absence. Ibid. Respondent

 

7

attended the church event instead of coming to work, and
petitioner terminated her employment. Ibid.

Respondent then sought to amend her pending charge
by modifying her intake questionnaire. Pet. App. 19a-20a;
see J.A. 71. In the field labeled “Employment Harms or
Actions,” she checked boxes for “Discharge” and “Reasonable
Accommodations,” and near the box labeled
“Other” she handwrote “Religion.” J.A. 101; cf. J.A. 74.³
The State Commission later notified respondent that it
had decided to dismiss her charge because “it cannot be
established that the employer has discriminated against
you based on Sex, Retaliation, or any other reason prohibited
by the laws we enforce.” J.A. 92. In December
2011, the Department of Justice issued respondent a
right-to-sue letter. Id. at 105-106; Pet. App. 21a.

3. In 2012, respondent brought this suit against
petitioner, alleging (as relevant) retaliation and religious
discrimination under Title VII. Pet. App. 2a, 16a.
The district court granted summary judgment for petitioner.
Id. at 2a-3a. The court of appeals affirmed on
the retaliation claim but reversed and remanded on the
religious-discrimination claim. Id. at 3a. This Court
denied certiorari. 135 S. Ct. 2804.

On remand, respondent amended her complaint to
allege only religious discrimination. Pet. App. 17a-19a.
Petitioner moved to dismiss for lack of jurisdiction,
arguing for the first time that respondent had failed to
include a claim for religious discrimination in her charge.
Id. at 21a-22a. The district court dismissed the suit for lack
of jurisdiction, concluding that the charge-filing requirement
is jurisdictional and nonwaivable. Id. at 24a-38a.

___________

³ The court of appeals reserved judgment on whether respondent
successfully amended her charge to allege religious discrimination.
Pet. App. 15a n.5. The United States takes no position on that issue.

 

8

4. The court of appeals again reversed. Pet. App.
1a-15a. It first concluded that the charge-filing requirement
is not jurisdictional, relying on circuit precedent.
Id. at 6a-9a. The court further explained that this
Court’s precedent supported that conclusion. Id. at
9a-12a. In Arbaugh, the court of appeals observed, this
Court “articulated a ‘readily administrable bright line’ ”
rule, under which “ ‘a threshold limitation’ ” is “ ‘jurisdictional’
” only “ ‘[i]f the Legislature clearly states that’ ” it
is. Id. at 9a-10a (quoting Arbaugh, 546 U.S. at 515-516).
Applying that test, the court of appeals concluded that
“Congress did not suggest—much less clearly state—
that Title VII’s administrative exhaustion requirement
is jurisdictional.” Id. at 10a.

The court of appeals concluded that failure to comply
with Title VII’s charge-filing requirement is an affirmative
defense. Pet. App. 14a. In this case, the court found
it “abundantly clear that [petitioner] ha[d] forfeited its
opportunity to assert” that defense by “wait[ing] five
years and an entire round of appeals all the way to the
Supreme Court” before raising it. Id. at 14a-15a.⁴

SUMMARY OF ARGUMENT

Title VII’s charge-filing requirement is a nonjurisdictional
prerequisite subject to forfeiture and waiver.

A. In recent years, this Court has sharpened the distinction
between jurisdictional requirements that limit
federal courts’ adjudicatory power and nonjurisdictional
rules that merely prescribe requirements for relief or procedures
for processing claims. The Court has adopted a
“readily administrable bright line” test: a requirement is

__________

⁴ Judge Jones concurred in the judgment, Pet. App. 1a n.*, but
did not issue a separate opinion.

 

9

“jurisdictional” only if Congress “clearly states” that it is.
Arbaugh v. Y & H Corp., 546 U.S. 500, 515-516 (2006).

Straightforward application of Arbaugh’s bright-line
test shows that Title VII’s charge-filing requirement
is not jurisdictional. Neither Title VII’s provision
that imposes the charge-filing requirement, 42 U.S.C.
2000e-5(e)(1), nor the provision making it a precondition
to filing suit, 42 U.S.C. 2000e-5(f )(1), “speak[s] in jurisdictional
terms.” Arbaugh, 546 U.S. at 515 (citation omitted).
Congress established jurisdiction over Title VII
suits in two other, separate provisions; neither makes
jurisdiction contingent on filing a charge with the EEOC.
This Court’s precedent powerfully confirms that conclusion.
The Court held in Zipes v. Trans World Airlines,
Inc., 455 U.S. 385 (1982), that the requirement to file a
timely charge before bringing suit is not jurisdictional
for reasons that apply equally to the requirement to file
a charge at all. Subsequent decisions addressing other
analogous requirements reinforce that conclusion.

B. Petitioner errs in contending (Br. 15-40) that the
clear-statement rule is inapplicable here because the
charge-filing requirement is an “exhaustion” requirement.
The language and logic of this Court’s decisions leave no
doubt that the clear-statement rule applies to exhaustion
requirements. In any event, Title VII’s requirement to
file a charge with the EEOC is not “in any sense an exhaustion
provision.” Woodford v. Ngo, 548 U.S. 81, 98 (2006).
The EEOC does not render decisions on charges that
courts review. Petitioner’s reliance on cases addressing
whether Congress intended a process of administrative
adjudication and judicial review to be exclusive is therefore
misplaced. Cf., e.g., Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994). Congress did not channel Title VII
claims to the EEOC for adjudication. It merely directed

 

10

individuals alleging employment discrimination to give
the EEOC a right of first refusal before bringing suit.

C. Petitioner also errs in contending that the chargefiling
requirement must be deemed jurisdictional because
it advances important statutory purposes. The Court
has held that a requirement is not “jurisdictional merely
because it promotes important congressional objectives.”
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 169 n.9
(2010). In any event, treating the charge-filing requirement
as jurisdictional is unnecessary to further Congress’s
aims. Defendants can and do seek dismissal for
failure to file a charge, giving plaintiffs a powerful incentive
to comply. And the costs of deeming the chargefiling
requirement jurisdictional—including burdens
imposed on courts and unfair outcomes for blindsided
private litigants—outweigh any benefits.

ARGUMENT

TITLE VII’S CHARGE-FILING REQUIREMENT IS NOT A
JURISDICTIONAL PREREQUISITE TO SUIT

Under the “bright line” rule the Court has articulated,
a requirement is jurisdictional only if Congress “clearly
states” that it is. Arbaugh v. Y & H Corp., 546 U.S. 500,
515-516 (2006). That clear-statement rule resolves this
case. Congress conferred jurisdiction over Title VII suits
in 28 U.S.C. 1331 and 42 U.S.C. 2000e-5(f )(3). Nothing in
Title VII’s text or context clearly indicates that failure to
comply with Title VII’s charge-filing requirement divests
federal courts of that jurisdiction.

Unable to satisfy the clear-statement rule, petitioner
urges the Court to depart from it. Petitioner spends the
bulk of its brief (Br. 15-40) inviting the Court to make
an exception to Arbaugh’s bright-line rule for “exhaustion”
requirements, Pet. Br. 15, invoking cases that
addressed statutes that channeled particular claims to

 

11

an exclusive avenue of administrative and judicial review.
This Court’s clear-statement cases, however, foreclose
petitioner’s proposed carve-out. In any event, Title VII’s
charge-filing requirement is not an exhaustion requirement,
and Title VII does not resemble statutes that
require presenting a claim to an agency for a decision
before seeking judicial review of that decision. Petitioner’s
alternative contention (Br. 27-32, 45-47) that the
charge-filing requirement serves purposes that are too
weighty to be waivable is also, at bottom, an invitation to
make an ad hoc exception to the Court’s categorical
clear-statement test. The Court should reject petitioner’s
invitations to blur Arbaugh’s bright-line rule.

A. Under This Court’s Clear-Statement Rule, Title VII’s
Charge-Filing Requirement Is Not Jurisdictional Because
Congress Did Not Clearly State Otherwise

1. A prerequisite to relief is not jurisdictional unless
Congress clearly states that it is

a. “Characterizing a rule as jurisdictional renders
it unique in our adversarial system” and carries significant
consequences. Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145, 153 (2013) (Auburn). A jurisdictional defect
“can be raised at any time, even by a party that once conceded
the tribunal’s subject-matter jurisdiction,” in turn
causing a “waste of adjudicatory resources” and “disturbingly
disarm[ing] litigants.” Ibid. And such a defect
must be raised by courts sua sponte, even on appeal.
Arbaugh, 546 U.S. at 515. Confusion about the meaning
of “jurisdiction” exacerbates those consequences. “ ‘Jurisdiction,’
this Court has observed, ‘is a word of many, too
many, meanings.’ ” Id. at 510 (quoting Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 90 (1998)). Courts
“ha[ve] sometimes been profligate in [their] use of the

 

12

term” and historically were “less than meticulous” in distinguishing
jurisdictional limits from other prerequisites
to relief. Id. at 510-511.

“This Court has endeavored in recent years to ‘bring
some discipline’ to the use of the term ‘jurisdictional’ ”
by “press[ing] a stricter distinction between truly jurisdictional
rules, which govern ‘a court’s adjudicatory
authority,’ and nonjurisdictional ‘claim-processing rules,’
which do not.” Gonzalez v. Thaler, 565 U.S. 134, 141
(2012) (citations omitted). In Arbaugh, it adopted a
“readily administrable bright line” test, 546 U.S. at 516,
which it has repeatedly reaffirmed: “A rule is jurisdictional
‘if the Legislature clearly states that a threshold
limitation on a statute’s scope shall count as jurisdictional.’
” Hamer v. Neighborhood Hous. Servs. of Chi.,
138 S. Ct. 13, 20 n.9 (2017) (quoting Gonzalez, 565 U.S.
at 141, in turn quoting Arbaugh, 546 U.S. at 515) (brackets
omitted).

Congress need not “incant magic words” to supply
a clear statement. United States v. Kwai Fun Wong,
135 S. Ct. 1625, 1632 (2015) (citation omitted). As in
construing any statute, courts should consider the
“[s]tatutory context,” id. at 1633, “including this Court’s
interpretation of similar provisions in many years past,”
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168
(2010); see John R. Sand & Gravel Co. v. United States,
552 U.S. 130, 133-139 (2008); Bowles v. Russell, 551 U.S.
205, 208-215 (2007). But “traditional tools of statutory
construction must plainly show that Congress imbued
a procedural bar with jurisdictional consequences.”
Wong, 135 S. Ct. at 1632. The Court has thus aptly
labeled Arbaugh’s test a “clear-statement rule.” Hamer,
138 S. Ct. at 20 n.9; accord Wong, 135 S. Ct. at 1632;
Gonzalez, 565 U.S. at 142.

 

13

Many of the Court’s cases applying the clear-statement
rule have addressed time limits for pursuing administrative
or judicial relief. E.g., Wong, 135 S. Ct. at 1631-1633;
Auburn, 568 U.S. at 153-155; Henderson v. Shinseki,
562 U.S. 428, 441 (2011). In that setting, it is especially
“clear and easy to apply: If a time prescription governing
the transfer of adjudicatory authority from one Article
III court to another appears in a statute, the limitation is
jurisdictional; otherwise, the time specification fits within
the claim-processing category.” Hamer, 138 S. Ct. at 20
(citation omitted). But Arbaugh’s “clear-statement rule”
applies equally “[i]n cases not involving the timebound
transfer of adjudicatory authority from one Article III
court to another.” Id. at 20 n.9. The Court has applied it
to (and found nonjurisdictional) Title VII’s provision limiting
its coverage to employers with at least 15 employees,
Arbaugh, 546 U.S. at 510-516; the requirement to register
a copyright (or be refused registration) before suing
for infringement, Reed Elsevier, 559 U.S. at 160-169
(addressing 17 U.S.C. 411(a)); the requirement that only
objections to an Environmental Protection Agency cleanair
regulation “raised with reasonable specificity” during
the rulemaking may be asserted in litigation, EPA v.
EME Homer City Generation, L.P., 572 U.S. 489, 511-512
(2014) (citation omitted); the requirement that parties to
certain railroad labor disputes “attempt settlement ‘in
conference’ ” before arbitrating, Union Pac. R.R. v.
Brotherhood of Locomotive Eng’rs & Trainmen Gen.
Comm. of Adjustment, 558 U.S. 67, 81-85 (2009) (Union
Pacific); and the requirement that a certificate of appealability
in habeas proceedings specify the issue on which
the court finds a substantial showing of the denial of a constitutional
right, Gonzalez, 565 U.S. at 140-145. The test

 

14

also applies regardless of whether a requirement is “considered
an element of ” the plaintiff ’s “claim” or instead
a “prerequisite to initiating a lawsuit.” Reed Elsevier,
559 U.S. at 165-166.

b. Concluding that a requirement is nonjurisdictional
means that, like most other requirements or defenses,
it “can be waived or forfeited by an opposing party.”
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714
(2019); see Kontrick v. Ryan, 540 U.S. 443, 456 (2004).
And because nonjurisdictional requirements do not
implicate courts’ authority, courts “are under no obligation
to raise” a nonjurisdictional issue sua sponte. Day
v. McDonough, 547 U.S. 198, 205 (2006); cf. Arbaugh,
546 U.S. at 514.

Deeming a requirement nonjurisdictional, however,
“does not render it malleable in every respect.” Nutraceutical,
139 S. Ct. at 714. Although this case does not
present the question, some nonjurisdictional requirements
are subject to exceptions even when timely
asserted—such as equitable tolling of limitations periods
—while others are “ ‘mandatory,’ ” i.e., “ ‘unalterable’ if
properly raised by an opposing party.” Ibid. (citation
omitted); see id. at 714-715 (deadline for appealing class
certification is nonjurisdictional but mandatory and
immune to equitable tolling); Hallstrom v. Tillamook
Cnty., 493 U.S. 20, 25-31 (1989) (requirement to give
notice to certain entities before suing was mandatory,
regardless of whether it was jurisdictional). Moreover,
although federal courts are “not obliged” to address
mandatory but nonjurisdictional defects on their own
initiative when the parties do not raise them, they may
have discretion to do so. Day, 547 U.S. at 209
(“[D]istrict courts are permitted, but not obliged, to

 

15
consider, sua sponte, the timeliness of a state prisoner’s
habeas petition.”).

2. Title VII’s text and context do not clearly indicate
that the charge-filing requirement is jurisdictional

a. Straightforward application of Arbaugh’s brightline
rule demonstrates that Title VII’s charge-filing
requirement is not a jurisdictional prerequisite to suits
brought under 42 U.S.C. 2000e-5(f )(1), and therefore is
subject to ordinary principles of forfeiture and waiver.
Title VII’s text contains no “clear statement” that the
requirement limits subject-matter jurisdiction. Wong,
135 S. Ct. 1632. The provision that requires filing a
charge (and sets the deadline) “does not speak in jurisdictional
terms or refer in any way to the jurisdiction
of the district courts.” Id. at 1633 (quoting Arbaugh,
546 U.S. at 515). That provision, 42 U.S.C. 2000e-5(e)(1),
states in relevant part: “A charge under this section
shall be filed within one hundred and eighty days after
the alleged unlawful employment practice occurred,” or
within 300 days if the individual first sought relief from
a state or local agency. Ibid. That text and the rest of
the provision address only proceedings before the
EEOC, not the scope of courts’ adjudicatory authority.

Likewise, the provision on which petitioner focuses,
42 U.S.C. 2000e-5(f )(1), says nothing about the “power
of the court” to decide Title VII claims, but addresses
only the “rights or obligations of the parties.” Reed
Elsevier, 559 U.S. at 161 (citations omitted). Section
2000e-5(f )(1) provides (with irrelevant exceptions) that,
“[i]f within thirty days after a charge is filed with the
Commission * * * , the Commission has been unable to
secure from the respondent a conciliation agreement
acceptable to the Commission, the Commission may
bring a civil action against any respondent” other than

 

16

state or local governments. 42 U.S.C. 2000e-5(f )(1). It
similarly authorizes the Attorney General to sue if the
defendant is a state or local government. Ibid. It further
provides that, “[i]f a charge filed with the Commission
* * * is dismissed by the Commission”—or if,
within a specified period, neither the EEOC nor the
Attorney General has filed suit—“a civil action may be
brought against the respondent named in the charge
* * * by the person claiming to be aggrieved.” Ibid.

Section 2000e-5(f )(1)’s text thus addresses who has a
cause of action to sue for a Title VII violation, and
against whom. See Thompson v. North Am. Stainless,
LP, 562 U.S. 170, 175-176 (2011). “[A] question whether
Congress intended to allow a certain cause of action
against” a particular defendant “is not a question of
jurisdiction”; it is a merits issue. Air Courier Conference
of Am. v. American Postal Workers Union, AFL-CIO,
498 U.S. 517, 523 n.3 (1991); accord Steel Co., 523 U.S.
at 92. Section 2000e-5(f )(1) answers the question whether
Congress “inten[ded] to create not just a private right
but also a private remedy,” Alexander v. Sandoval,
532 U.S. 275, 286 (2001)—not the distinct question
whether a court has the power to “proceed at all,” Steel
Co., 523 U.S. at 94 (citation omitted).

Title VII’s text contrasts sharply with the text of
requirements that have satisfied the clear-statement
test. In Rockwell International Corp. v. United States,
549 U.S. 457 (2007), the Court addressed the provision
of the False Claims Act, 31 U.S.C. 3729 et seq., withdrawing
jurisdiction over claims based on public disclosures.
549 U.S. at 467-470. The Act provided that “[n]o
court shall have jurisdiction over an action” by a private
plaintiff “based upon the public disclosure of allegations
or transactions” in certain contexts “unless” the plaintiff

 

17

“is an original source.” 31 U.S.C. 3730(e)(4)(A) (2006).
The Court held that “the jurisdictional nature of the
original-source requirement is clear ex visceribus verborum.”
Rockwell Int’l, 549 U.S. at 468. And in Patchak
v. Zinke, 138 S. Ct. 897 (2018), the plurality concluded
Congress had “use[d] jurisdictional language” by “stat-
[ing] that an ‘action’ relating to” certain property “ ‘shall
not be filed or maintained in a Federal court and shall
be promptly dismissed.’ ” Id. at 904-905 (opinion of
Thomas, J.) (citation omitted). Title VII’s provisions at
issue here bear no resemblance to those statutes. They
neither refer to the authority of courts nor mandate dismissal
of actions.

Moreover, the charge-filing requirement itself is a paradigmatic
claim-processing rule. It requires individuals
alleging discrimination by a private, state-government, or
local-government employer to submit information to an
agency and then wait a specified period before bringing
suit unless the agency itself sues. That is a quintessential
requirement for the processing of claims. Cf. Patchak,
138 S. Ct. at 906 (plurality opinion) (listing “filing deadline[
s]” and “exhaustion requirement[s]” compelling parties
to ‘‘ ‘take certain procedural steps at certain specified
times’ ” as classic “ ‘claim-processing rule[s]’ ” (citation
omitted)).

b. Statutory context confirms this conclusion. Congress
conferred federal-court jurisdiction over Title VII
suits in two other, separate provisions. First, 28 U.S.C.
1331 “gives federal courts subject-matter jurisdiction
over all civil actions ‘arising under’ the laws of the
United States,” and “Title VII actions fit that description.”
Arbaugh, 546 U.S. at 503 (citation omitted). Second,
Congress included an additional grant of jurisdic

 

18

tion when it enacted Title VII because, in 1964, “[Section]
1331’s umbrella provision for federal-question
jurisdiction contained an amount-in-controversy limitation”
that might “impede an employment-discrimination
complainant’s access to a federal forum.” Id. at 505.
That provision, codified at 42 U.S.C. 2000e-5(f )(3), provides:
“Each United States district court and each
United States court of a place subject to the jurisdiction
of the United States shall have jurisdiction of actions
brought under this subchapter.” Ibid. It then addresses
venue for such suits. Ibid. Since the elimination of Section
1331’s amount-in-controversy requirement, Section
2000e-5(f )(3) “has served simply to underscore Congress’
intention to provide a federal forum for the adjudication
of Title VII claims.” Arbaugh, 546 U.S. at 506.

Neither Section 1331 nor Section 2000e-5(f )(3) makes
jurisdiction turn on whether Title VII’s charge-filing
requirement has been satisfied. Neither “specifies any
threshold ingredient akin to 28 U.S.C. § 1332’s monetary
floor.” Arbaugh, 546 U.S. at 515. Although Section
2000e-5(f )(3) confers jurisdiction only over “actions
brought under [Title VII],” 42 U.S.C. 2000e-5(f )(3)
(emphasis added), that limitation is best understood—
like Section 1331’s “arising under” requirement—to
require that a complaint assert a “colorable” Title VII
claim that is not “ ‘wholly insubstantial and frivolous.’ ”
Arbaugh, 546 U.S. at 513 n.10 (quoting Bell v. Hood,
327 U.S. 678, 682-683 (1946)) (addressing Section 1331);
see Steel Co., 523 U.S. at 89. Moreover, as this Court
has repeatedly held in construing Title VII and other
statutes, the fact that Congress addressed jurisdiction
in “an entirely separate provision” confirms Section
2000e-5(e)(1) and (f )(1) are not jurisdictional. Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 394 (1982); see

 

19

Arbaugh, 546 U.S. at 515; Wong, 135 S. Ct. at 1633; Reed
Elsevier, 559 U.S. at 164-165.

c. “[C]ontext” also “includ[es] this Court’s interpretations
of similar provisions in many years past,” which
can be “probative of Congress’ intent.’’ Hamer, 138 S. Ct.
at 20 n.9 (brackets and citation omitted). This Court’s
precedent powerfully reinforces the most natural reading
of the statute. Long before Arbaugh, this Court
held in Zipes that Title VII’s requirement to “fil[e] a
timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court” for
reasons that apply equally to the charge-filing requirement
itself. 455 U.S. at 393-394; see id. at 393-398.

In Zipes, the Court reasoned that “[t]he provision
specifying the time for filing charges with the EEOC,”
Section 2000e-5(e)(1), “does not speak in jurisdictional
terms or refer in any way to the jurisdiction of the district
courts.” 455 U.S. at 394; see id. at 394 n.10. The
Court also explained that the provision requiring a
timely charge is “entirely separate” from “[t]he provision
granting district courts jurisdiction under Title
VII,” Section 2000e-5(f )(3), which “does not limit jurisdiction
to those cases in which there has been a timely
filing with the EEOC.” Id. at 393-394; see id. at 393 n.9.
The same is equally true of the requirement to file a
charge, which appears in the same provision.

Zipes further reasoned that Franks v. Bowman
Transportation Co., 424 U.S. 747 (1976), and Albemarle
Paper Co. v. Moody, 422 U.S. 405 (1975), foreclose
deeming the timely-charge requirement jurisdictional.
See Zipes, 455 U.S. at 396-397. In Albemarle Paper, the
Court “reject[ed] th[e] contention” that unnamed members
of a Title VII plaintiff class “who ha[d] not themselves
filed charges with the EEOC” could not receive

 

20

backpay. 422 U.S. at 414 n.8. In Franks, it again
“reject[ed]” the argument that unnamed class members
who “had not filed administrative charges under the
provisions of Title VII with the [EEOC]” could not
obtain seniority relief. 424 U.S. at 771. “If the timelyfiling
requirement were to limit the jurisdiction of the
District Court to those claimants who have filed timely
charges with the EEOC,” Zipes held, the courts “would
have been without jurisdiction to adjudicate the claims
of those who had not filed as well as without jurisdiction
to award them” relief. 455 U.S. at 397. So too here, the
necessary implication of Franks and Albemarle Paper
is that the failure to file a charge at all does not divest a
court of jurisdiction.

Moreover, as Zipes explained, in both Franks and
Albemarle Paper the Court recognized that “Congress
had approved the Court of Appeals cases that awarded
relief to class members who had not exhausted administrative
remedies before the EEOC.” 455 U.S. at 397.
“[I]n doing so,” Zipes concluded, “Congress necessarily
adopted the view that the provision for filing charges with
the EEOC should not be construed to erect a jurisdictional
prerequisite to suit.” Ibid.; see Franks, 424 U.S. at
771; Albemarle Paper, 422 U.S. at 414 n.8. Petitioner dismisses
(Br. 48-49) Franks and Albemarle Paper as confined
to the class-action context. But this Court in Zipes
rejected that crabbed reading of those decisions by concluding
that their logic shows the timely-charge requirement
itself is nonjurisdictional. See 455 U.S. at 397.

Petitioner cites two earlier cases that purportedly
“held that the filing of ‘charges of employment discrimination
with the Commission’ is one of ‘the jurisdictional
prerequisites to a federal action.’ ” Pet. Br. 48 (quoting
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798

 

21

(1973), and citing Alexander v. Gardner-Denver Co.,
415 U.S. 36, 47 (1974)). But Zipes dismissed those and
other “scattered references to the timely-filing requirement
as jurisdictional” because “the legal character of
the requirement was not at issue in those cases,” and
later cases had not used the same label. 455 U.S. at 395;
see id. at 395 n.12. Those dicta are at most “ ‘drive-by
jurisdictional rulings’ that should be accorded ‘no precedential
effect’ on the question whether the federal court
had authority to adjudicate the claim in suit.” Arbaugh,
546 U.S. at 511 (quoting Steel Co., 523 U.S. at 91).

Beyond the Title VII context, the Court has held that
analogous requirements are not jurisdictional for reasons
similar to those applicable here. For example, in
Reed Elsevier, the Court held that the requirement that
a person must obtain (or seek and be refused) registration
of a copyright from a federal agency before suing for
infringement is not jurisdictional. 559 U.S. at 160-169.
The Court noted that it had previously treated as nonjurisdictional
“other types of threshold requirements that
claimants must complete, or exhaust, before filing a lawsuit,”
such as the administrative exhaustion requirement
of 42 U.S.C. 1997e(a) for certain suits by prisoners.
559 U.S. at 166; see id. at 166 n.6 (citing Jones v. Bock,
549 U.S. 199, 211 (2007), and Woodford v. Ngo, 548 U.S.
81, 93 (2006)); EME Homer City, 572 U.S. at 511-512
(applying Arbaugh to requirement to raise objection to
regulation with “reasonable specificity” during rulemaking);
Union Pacific, 558 U.S. at 80-85 (applying Arbaugh
to hold nonjurisdictional a statutory requirement that
parties to railway-labor disputes attempt to “conferenc[
e]” certain disputes before arbitrating).

d. Petitioner and its amici suggest that Title VII’s
charge-filing requirement is jurisdictional because it

 

22

conditions a waiver of state sovereign immunity. Pet.
Br. 46; NCSL Amicus Br. 22-29. That contention lacks
merit. To be sure, Congress’s decision to condition a
waiver of federal sovereign immunity on satisfying a
particular requirement may warrant deeming it jurisdictional.
Cf. United States v. Dalm, 494 U.S. 596,
608-610 (1990). But Section 2000e-5(e)(1) and (f )(1) do
not apply to suits against the federal government.
Although Section 2000e-5(e)(1) and (f )(1) apply to suits
against States—as well as nonimmune private and
local-government defendants—the fact that a State
could face liability under those general provisions cannot
justify deeming the charge-filing requirement jurisdictional.
Otherwise, any prerequisite to a Title VII suit
applicable to actions against States and other defendants
alike—including the timely-charge and employeenumerosity
requirements—would presumably be jurisdictional.
That cannot be squared with this Court’s
decisions in Zipes and Arbaugh.

In contrast, sovereign-immunity considerations are
relevant to a separate provision of Title VII (not at issue
here) that addresses claims of employment discrimination
by federal-government employers. See 42 U.S.C.
2000e-16. Section 2000e-16 establishes a distinct procedure
for the adjudication of such claims. “[C]omplaint[s]
of discrimination” are first presented to the employing
agency, and the agency’s action may then be appealed
to the EEOC; an employee or applicant who is “aggrieved
by the final disposition of his complaint, or by the failure
to take final action on his complaint, may file a civil action
as provided in section 2000e-5.” 42 U.S.C. 2000e-16(c).
As petitioner noted at the petition stage, although the
EEOC has long maintained that Section 2000e-5’s
charge-filing requirement is not jurisdictional in suits

 

23

against private or state or local government employers,
Pet. 19 & n.6, the government has argued that the failure
of a person alleging employment discrimination by the
federal government to file a complaint in compliance with
Section 2000e-16 is a jurisdictional bar, Pet. 18 & n.5.

Sections 2000e-5 and 2000e-16 differ in significant
respects, including that Section 2000e-16 implicates federal
sovereign immunity in every application, and that
it authorizes suits only by a person “aggrieved by the
final disposition of his complaint,” which presupposes
that a complaint was filed and “dispos[ed] of ” by the
EEOC, 42 U.S.C. 2000e-16(c). In light of those differences,
and because Section 2000e-16 does not apply
here, this case provides no occasion to address whether
Section 2000e-16(c)’s charge-filing requirement is jurisdictional
or otherwise nonwaivable. But if the Court
were to conclude in an appropriate case that the differences
between Sections 2000e-5 and 2000e-16 are insufficient
to warrant classifying them differently, it should
conclude that neither is jurisdictional.

B. Petitioner’s Contention That Title VII’s Charge-Filing
Requirement Is An “Exhaustion” Rule Exempt From
The Clear-Statement Rule Lacks Merit

Petitioner cannot show that Title VII contains the requisite
clear statement that the charge-filing requirement
is jurisdictional. Petitioner accordingly devotes most of
its argument to urging an exception to Arbaugh’s brightline
rule for “exhaustion” requirements—i.e., requirements
to present claims to, or exhaust remedies before,
an agency. Pet. Br. 40. Petitioner attempts to ground
that exception in this Court’s cases addressing statutory
schemes that channel review of particular claims
through an exclusive process of administrative and judicial
review. In those regimes, petitioner argues, the

 

24

provisions precluding review by other means “[t]ypically”
are jurisdictional. Pet. Br. 18 (emphasis omitted).

That contention lacks merit. There is no exception
to Arbaugh for exhaustion requirements. Congress of
course can make an exhaustion requirement jurisdictional,
and this Court has held that Congress has done
so in certain statutes. See, e.g., Mathews v. Eldridge,
424 U.S. 319, 328 (1976). But petitioner identifies no
basis for exempting such requirements from Arbaugh’s
rule. In any event, Title VII’s charge-filing requirement
is not an exhaustion requirement, and the Court’s
cases addressing channeling review to an exclusive process
are inapposite.

1. In Arbaugh and later cases, the Court stated the
clear-statement rule in categorical terms, with no suggestion
that a broad subset of requirements is exempt.
See Arbaugh, 546 U.S. at 515-516; pp. 12-14, supra. The
Court has explained that Arbaugh’s “clear statement
rule” applies across the board—governing “time bars,”
Wong, 135 S. Ct. at 1632, and other requirements alike,
see Hamer, 138 S. Ct. at 20 n.9 (“clear-statement rule”
extends to “cases not involving the timebound transfer
of adjudicatory authority from one Article III court to
another”). The Court has in fact applied Arbaugh’s rule
to requirements to present matters to agencies prior to
litigating in a particular forum. See EME Homer City,
572 U.S. at 511-512; Reed Elsevier, 559 U.S. at 160-169;
cf. Union Pacific, 558 U.S. at 81-85. And it has held that
even an explicit statutory requirement to “ ‘exhaust[ ]’ ”
claims before administrative adjudicators is not “jurisdictional,”
Ngo, 548 U.S. at 88, 93 (quoting 42 U.S.C.
1997e(a)), and instead is an affirmative defense, Jones,
549 U.S. at 211-217; see Patchak, 138 S. Ct. at 906 (plurality
opinion).

 

25

Adopting an exception to Arbaugh’s rule for exhaustion
requirements also would undermine the rule’s central
purpose. Injecting a threshold, ‘Arbaugh Step Zero’
inquiry would blur the “readily administrable bright line”
Arbaugh drew and reintroduce some of the uncertainty
and confusion that the clear-statement rule eliminates.
546 U.S. at 516. And it would defeat the Court’s goal of
“leav[ing] the ball in Congress’ court,” which requires
providing clear background rules against which Congress
can legislate. Id. at 515.

To be sure, “Congress could make” exhaustion
requirements jurisdictional, “just as it has made an
amount-in-controversy threshold an ingredient of
subject-matter jurisdiction” in 28 U.S.C. 1332. Arbaugh,
546 U.S. at 514-515; see id. at 515 n.11 (listing examples
of statutes that make particular requirements jurisdictional).
And this Court has held that some requirements
to present claims to agencies are jurisdictional in
character. In Eldridge, it concluded that the statutory
requirement to present a Social Security claim first to
the agency is a “ ‘jurisdictional’ ” and “nonwaivable” prerequisite
to judicial review under 42 U.S.C. 405(g), reasoning
that “[a]bsent such a claim there can be no ‘decision’
” that a court can review. 424 U.S. at 328; cf.
42 U.S.C. 2000e-16(c) (permitting Title VII suit by federal
employee “aggrieved by the final disposition of his
complaint, or by the failure to take final action on his
complaint,” which presupposes that complaint was filed
and disposed of ). That conclusion is reinforced in the
Social Security context by the fact that 42 U.S.C. 405(h)
expressly bars jurisdiction under any other statute,
including 28 U.S.C. 1331, to review Social Security
determinations, which necessarily means 42 U.S.C.
405(g) provides the only avenue to court. But precisely

 

26

because Congress can make an exhaustion requirement
jurisdictional if it wishes, there is no sound basis for
exempting such requirements from the ordinary rule.

2. In any event, petitioner’s argument fails on its
own terms because Title VII’s charge-filing requirement
is not “in any sense an exhaustion provision.”
Ngo, 548 U.S. at 98 (rejecting analogy between exhaustion
requirement of 42 U.S.C. 1997e(a) for certain suits
by prisoners and Title VII’s charge-filing requirement).
Unlike the statutory schemes in the cases petitioner
cites (Br. 18-23)—in which a claimant must submit a
claim to an agency, which then renders a decision that
is subject to judicial review—Title VII does not empower
the EEOC to issue decisions adjudicating claims and
awarding relief that courts then review. The statute
directs the EEOC to investigate allegations of discrimination,
to determine whether reasonable cause exists to
believe that the allegations are true, and to attempt to
conciliate disputes. 42 U.S.C. 2000e-5(b) and (f )(1). If
those efforts fail, the EEOC cannot issue a self-executing
ruling that parties must obey unless it is overturned by
a court.

Instead, if the EEOC believes a claim is meritorious,
it must seek judicial relief. And if a suit is brought—
whether by the EEOC, the Attorney General, or a private
party—the court does not review the EEOC’s
action; it considers the claim of employment discrimination
de novo. See Chandler v. Roudebush, 425 U.S. 840,
844-845 (1976). Moreover, a private suit can proceed
even if the EEOC does not act at all. An individual
alleging discrimination is entitled to sue 180 days after
filing a charge even if the EEOC’s investigation is
ongoing. 42 U.S.C. 2000e-5(f )(1).

 

27

The Title VII regime thus does not resemble the
“statutory scheme[s] of administrative and judicial
review” petitioner surveys (Br. 20), in which Congress
has channeled review of certain claims to agencies and
restricted judicial review accordingly. See Pet. Br.
18-23. Instead, individuals alleging discrimination
merely must give the EEOC a right of first refusal
before bringing their own suits. This Court’s cases
addressing whether it is “ ‘fairly discernible’ ” that Congress
intended a particular avenue of administrative
adjudication and judicial review to be “exclusive[ ]” are
therefore inapposite. Elgin v. Department of the Treasury,
567 U.S. 1, 10 (2012); see id. at 8-15; Thunder
Basin Coal Co. v. Reich, 510 U.S. 200, 207-216 (1994).
Congress did not channel Title VII claims to the EEOC
for adjudication; it left the adjudication of such claims
to federal courts. Respondent is not seeking to bypass
an exclusive avenue for adjudicating claims by litigating
in a forum different than the one Congress specified.
She brought suit in district court, as Title VII directs.
The question is whether a failure to comply with a particular
prerequisite to seeking review in that forum has
jurisdictional consequences.

The charge-filing requirement also does not implicate
many of the same concerns that underlie typical
exhaustion requirements. It does not guard against
usurpation of “administrative agency authority” to decide
disputes or to “correct [an agency’s] own mistakes.”
Ngo, 548 U.S. at 89 (citation omitted). Nor does it “produce
a useful record for subsequent judicial consideration.”
Ibid. (citation omitted). Courts in Title VII suits
do not sit in review of the EEOC’s reasonable-cause
determinations. They simply decide the plaintiff ’s claims.

 

28

3. Even if petitioner could establish that exhaustion
requirements are exempt from Arbaugh and that the
requirement to file a charge is an exhaustion requirement,
that still would not support petitioner’s position
here. Respondent undisputedly filed a charge with the
EEOC. Petitioner’s contention (Br. 54-56) is that
respondent’s charge was inadequate because it omitted
the specific allegation (of religious discrimination) on
which respondent is now pursuing relief in court.
Because petitioner “forfeited” any defense that respondent
failed to satisfy the charge-filing requirement, Pet.
App. 15a, petitioner must show that Congress stripped
federal-court jurisdiction over any particular allegation
not included in an otherwise-proper charge.

Petitioner has not made that showing. Indeed, where
a statute does not expressly preclude consideration by
a court of matters not presented in a particular way to
an agency, courts are reluctant to read in an “issue
exhaustion” requirement unless the agency proceedings
are “adversarial” in nature. Sims v. Apfel, 530 U.S.
103, 110 (2000); see id. at 107-110. Courts should be
all the more reluctant to read in a jurisdictional issueexhaustion
rule where Congress has not imposed one.
It is thus very unlikely that Congress intended the
omission of particular allegations in an EEOC charge to
have jurisdictional consequences. Proceedings before
the EEOC are not adversarial. Moreover, whatever
specific allegations a charge makes, the EEOC conducts
its own investigation and may bring suit challenging any
violations it discovers in the course of a reasonable
investigation. See General Tel. Co. of the Nw., Inc.
v. EEOC, 446 U.S. 318, 331 (1980); see also p. 31,
infra. Title VII therefore cannot fairly be construed as

 

29

imposing a jurisdictional bar to courts’ considering particular
allegations not sufficiently articulated in a charge.

C. The Statutory Purposes Do Not Require Treating Title
VII’s Charge-Filing Requirement As Jurisdictional

Petitioner also argues (Br. 27-32, 45-47) that the
charge-filing requirement should not be deemed jurisdictional
because it serves important statutory purposes.
But a requirement should not “be ranked as jurisdictional
merely because it promotes important congressional
objectives.” Reed Elsevier, 559 U.S. at 169 n.9. In
any event, Congress’s purposes do not require deeming
the charge-filing requirement jurisdictional.

1. The EEOC’s role in investigating and conciliating
discrimination claims is a “key component of the statutory
scheme.” Mach Mining, LLC v. EEOC, 135 S. Ct.
1645, 1651 (2015). And the charge-filing requirement
serves important goals. A charge enables the EEOC to
investigate and attempt to resolve claims or, failing
that, to sue. The charge-filing requirement also was
designed—as part of a legislative compromise—to limit
the EEOC’s authority by confining its investigations
primarily to matters “relevant” to charges it receives,
42 U.S.C. 2000e-8(a), nearly all of which are filed by private
parties. See EEOC v. Shell Oil Co., 466 U.S. 54, 64
(1984).

Petitioner is mistaken, however, in assuming (Br.
27-32, 45-47) that, if the charge-filing requirement is
nonjurisdictional, individuals alleging discrimination
will cease filing charges and will instead proceed immediately
to court, circumventing the EEOC. Deeming
the charge-filing requirement nonjurisdictional does
not excuse individuals from filing charges. It means the
defense of failure to file a proper charge can be forfeited
or waived, and courts need not raise it sua sponte. See

 

30

pp. 14-15, supra. But if a defendant timely raises a valid
defense that the plaintiff failed to file a proper charge,
“a court will usually dismiss a complaint for failure to
do so.” Mach Mining, 135 S. Ct. at 1651.

Nor is there any reason to suppose that defendants
will ordinarily be unable to raise that defense. An
employer sued under Title VII will know whether a
charge was previously filed because the EEOC must
“serve a notice of the charge” on the employer “within
ten days” after it is filed, 42 U.S.C. 2000e-5(b), and the
EEOC ordinarily serves a copy of the actual charge,
29 C.F.R. 1601.14(a). If no charge was filed, the employer
has every reason to raise that failure as a defense, at
least where (as is often true) the time for filing (or
amending) a charge has expired.

Individuals alleging discrimination, in turn, have a
powerful incentive to file charges in the first instance to
avoid having their suits dismissed, in addition to hoping
that the EEOC might help mediate a resolution or bring
its own suit. Petitioner points to no evidence that individuals
have bypassed the EEOC process entirely in the
eight circuits that have held the charge-filing requirement
nonjurisdictional. And although the EEOC does
not publish circuit-specific statistics, the number of
Title VII charges received nationwide has remained relatively
consistent for decades.⁵

_________

⁵ The EEOC received slightly more charges in FY2017 (59,466)
than in FY1997 (58,615). EEOC, Title VII of the Civil Rights Act
of 1964 Charges, FY 1997-FY 2017, https://www.eeoc.gov/eeoc/
statistics/enforcement/titlevii.cfm. The number has fluctuated but
has ranged between approximately 56,000 and 73,000 throughout
(not counting charges filed with state or local agencies). Ibid.

 

31

To the extent petitioner fears that deeming the
charge-filing rule nonjurisdictional will induce individuals
alleging discrimination to file charges omitting specific
allegations that they later attempt to raise in court,
that fear is unfounded. An individual who enlists the
EEOC’s assistance (and hopes it will bring its own suit)
has little incentive to leave potentially viable claims
behind. And if the EEOC brings suit, it is not confined
to the allegations of discrimination identified in the original
charge. See General Telephone, 446 U.S. at 331.

If an individual nevertheless files a charge and then
brings suit alleging different or additional claims, a defendant
may seek dismissal of those claims. An employer ordinarily
will be well positioned to do so; it will be aware of the
nature of the allegations asserted in the charge. To be
sure, lower courts have concluded that a private plaintiff
may assert in litigation any allegation that is “like or reasonably
related” to those in the initial charge. E.g.,
Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189,
1204-1205 (9th Cir. 2016), cert. denied, 137 S. Ct. 623
(2017). That reflects the fundamental nature of a charge,
which marks the beginning of the process of investigating
allegations, not the end. But if a plaintiff asserts a claim
that is not reasonably related to the charge, the employer
can seek dismissal. Plaintiffs have little reason to risk
having their claims rejected in court by holding them back
from the EEOC.

Petitioner’s position thus principally matters only
where either (A) the employer itself did not notice the
difference between the charge and the complaint, or
(B) the employer knew of the difference but decided not
to raise it promptly as a defense. It is highly unlikely
that Congress intended to strip jurisdiction over a claim
in either circumstance. If even the employer does not

 

32

detect a deficiency in the allegations of a charge, it is
unlikely the individual (often a layperson) recognized it
either. And if a defendant deliberately chooses to
bypass an available defense that the charge omitted a
particular allegation, it is unrealistic to suppose that
Congress intended to bar federal courts from entertaining
the claim. That outcome would do little to advance
the charge-filing requirement’s purposes. Although the
EEOC would have been unable to attempt conciliation
of the claim, the likelihood of voluntary resolution in
that scenario is presumably low. And although the
EEOC would have missed the chance to bring its own
suit, a private suit already has been brought, and the
EEOC can seek leave to intervene if it deems the suit
“of general public importance.” 42 U.S.C. 2000e-5(f )(1).

2. Any marginal benefit that deeming the chargefiling
requirement jurisdictional would generate is outweighed
by the costs for courts and litigants. Labeling
the charge-filing requirement jurisdictional matters
most in cases where a defendant does not raise as a
defense the plaintiff ’s failure to include a particular
allegation in her EEOC charge; the plaintiff prevails on
the merits to some extent, either by proving her claim
or overcoming an interlocutory hurdle; and then the
defendant seeks to undo that result by belatedly contesting
jurisdiction (or a court is compelled to do so sua
sponte). That outcome is unfair to a plaintiff who has
achieved full or partial success litigating the merits, and
it diminishes defendants’ incentive to review a plaintiff
’s complaint carefully and raise any issues regarding
the charge promptly. In this case, petitioner failed to
raise its objection to respondent’s charge until years
into the litigation, after this Court denied certiorari in a
prior appeal. Pet. App. 14a-15a.

 

33

Deeming the charge-filing requirement jurisdictional
also would be “waste[ful] of adjudicatory resources” of
courts. Auburn, 568 U.S. at 153. It would force trial
and appellate courts to address the adequacy of the
charge’s allegations at the threshold, even when the
parties do not raise the issue, and even where a claim
clearly fails on the merits. See Steel Co., 523 U.S. at 94.
And if a defect in the charge surfaces late in the litigation
or on appeal, it renders nugatory the time and
effort spent by courts until that point.

Finally, although Title VII uses mandatory language
in requiring a charge before suit is brought, 42 U.S.C.
2000e-5(e)(1) and (f )(1) (charge “shall be filed” before
bringing suit), this case does not present the separate
question whether any exceptions exist. Exceptions (if
any) to procedural requirements should be applied
“sparingly,” National R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113 (2002), and excusing a failure to comply
with the charge-filing requirement might be appropriate
at most only in limited circumstances. For example,
courts have recognized exceptions where an agency
official erroneously refused to accept a charge or
amendment or misled the individual alleging discrimination.
See, e.g., McKee v. McDonnell Douglas Tech.
Servs. Co., 700 F.2d 260, 263-264 (5th Cir. 1983); Josephs
v. Pacific Bell, 443 F.3d 1050, 1054 (9th Cir. 2006).
“[A]ffirmative misconduct on the part of a defendant”
that “lulled the plaintiff into inaction” might also warrant
an exception. Baldwin Cnty. Welcome Ctr. v. Brown,
466 U.S. 147, 151 (1984) (per curiam). The existence of
any such exceptions is not presented here because petitioner
“forfeited” the defense that respondent failed to
comply with the charge-filing requirement. Pet. App.
15a. But the relevant point is that petitioner’s position

 

34

would take off the table entirely any possibility of
exceptions tailored to address such rare circumstances.

CONCLUSION

The judgment of the court of appeals should be
affirmed.

Respectfully submitted.

NOEL J. FRANCISCO
Solicitor General
ERIC S. DREIBAND
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
JONATHAN C. BOND
Assistant to the Solicitor
General
BONNIE I. ROBIN-VERGEER
DAYNA J. ZOLLE
Attorneys

 

JAMES L. LEE
Deputy General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
ELIZABETH E. THERAN
Assistant General Counsel
GAIL S. COLEMAN
Attorney
U.S. Equal Employment
Opportunity Commission

APRIL 2019