The Improper Dismissal of Title VII Claims on Jurisdictional Exhaustion Grounds: How Federal Courts Require That Allegations Be Presented to an Agency Without the Resources to Consider Them

Abstract

Title VII of the Civil Rights Act of 1964 represents a watershed moment in American history. With Title VII\u27s passage, Congress acknowledged the need to “back” the civil rights movement with “federal legislative power.” Title VII was meant to eliminate practices that inhibit employment opportunity equality. Beyond eliminating those practices, Title VII was also designed to assure equality of employment opportunities and to eliminate conduct that “fostered racially stratified job environments to the disadvantage of minority citizens.” This Title renders unlawful the refusal or failure to hire or “otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual\u27s race, color, religion, sex, or national origin, or to limit, segregate or classify any employee” for the same improper reasons. A prima facie Title VII violation may be established through policies or practices that are neutral on their face but have a discriminatory effect. Recent appointees to the federal bench are skeptical of civil rights cases in general, and employment discrimination cases in particular, and they are not alone. There are many who still think that employment discrimination plaintiffs are “whiners.” However, the public\u27s perception of employment discrimination plaintiffs may be evolving faster than the judiciary\u27s. Anita Hill\u27s experiences are telling. In 1991, following Hill\u27s testimony in the Clarence Thomas confirmation hearings, she received letters from men who thought that sexual harassment was no more than “the fantastic, vengeful invention of disgruntled employees or spurned lovers.” However, sixteen years later, after a former New York Knicks employee won an $11.6 million jury award in a sexual harassment case, Ms. Hill received very different letters. Over half of the people who wrote were men, who, “through their own observations or the stories told them by their mothers, sisters, wives, and daughters understand the problem [of sexual harassment at work] and its harm.” Perhaps the best example of how the tide has turned on employment discrimination is the public reaction to Ledbetter v. The Goodyear Tire & Rubber Co. A wave of immediate public outrage followed the Supreme Court\u27s decision that Lilly Ledbetter\u27s equal pay claim was time-barred. In fact, the decision was so disliked that the Lilly Ledbetter Fair Pay Restoration Act was quickly passed to overturn its holding, and President Obama selected it as the first bill he signed into law. The reaction was even more surprising given that the public was reacting to the impact of a procedural rule: the statute of limitations, “a technical legal topic.” Yet outrage over using procedure to defeat civil rights claims is justified by Title VII\u27s history. Title VII was meant “to ‘make it easier for a plaintiff of limited means to bring a meritorious suit.”’ Title VII was meant to open, not shut, courthouse doors. Thus, a plaintiff should have no trouble establishing that a federal court has jurisdiction over a claim for employment discrimination brought pursuant to Title VII of the Civil Rights Act of 1964. Title VII is a law of the United States. Correspondingly, jurisdiction should vest as a result of 28 U.S.C. § 1331. Yet some federal courts require much more than straightforward federal question jurisdiction to establish subject matter jurisdiction in Title VII cases. To establish subject matter jurisdiction for a Title VII claim in the District of Hawaii, “(1) the plaintiff must timely file his claim with the EEOC; and (2) the plaintiff must timely institute his action after receipt of a right-to-sue notice.” Other courts have further held that subject matter jurisdiction*216 in Title VII cases only extends over allegations of discrimination “‘like or reasonably related’ to the allegations” alleged in the initial charge filed with the Equal Employment Opportunity Commission (EEOC). If these three “jurisdictional” requirements -- that a timely claim be filed with the EEOC, that the EEOC issue a right-to-sue notice, and that the allegations in the federal complaint track those made in the original EEOC claim (presentment) -- are satisfied, a plaintiff has administratively exhausted his or her claim. Requiring exhaustion makes little sense given the current understaffing of the already overburdened EEOC and the procedures followed by that agency to pursue the initial filed charge; yet the circuits agree that administrative exhaustion in Title VII cases is required. However, there is substantial disagreement over whether the presentment requirement, which requires that the scope of the allegations presented in federal court mimics the scope of the allegations in the EEOC claim, is a requirement that may be excused under certain circumstances. Why would any federal court add to the “procedural minefield” a Title VII plaintiff must overcome to take her claim to trial by requiring compliance with administrative procedures before an agency that lacks the ability to enforce Title VII? This Article attempts to answer that question