Ford Bend County v. Davis Brief of Amicus Curiae

    No. 18-525
In The

mpreme Court of tfje SJntteti ^>tate£

Fort Bend County,

Petitioner,

v.

Lois M. Davis,

Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC. IN SUPPORT OF RESPONDENT

SHERRILYN A. IFILL 
Director-Counsel 

J anai S. Nelson 
Samuel Spital *
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector St., 5th Floor 
New York, NY 10006 
(212) 965-2200 
sspital@naacpldf.org

April 3, 2019

Kerrel Murray 
Sparky Abraham 
NAACP Legal Defense & 

Educational Fund, Inc. 
700 14th St., NW Suite 600 
Washington, DC 20005

* Counsel o f Record

Counsel for Amicus Curiae 
NAACP Legal Defense & 
Educational Fund, Inc.

mailto:sspital@naacpldf.org


1

TABLE OF AUTHORITIES....................   iii

INTERESTS OF AM ICUS CURIAE............................ 1

INTRODUCTION AND SUMMARY OF
ARGUMENT.....................................................................2

ARGUMENT..................................  3

I. ACCESS TO A ROBUST PRIVATE RIGHT
OF ACTION IS INTEGRAL TO TITLE 
VIES EFFECTUATION....................................... ....3

A. Congress Fashioned the Private Right
of Action as a Prim ary Mechanism for 
Compelling Compliance with Title VII..........3

B. The History, Purpose, and Role of Title
VII’s Private Attorneys General 
Confirm tha t Presuit Filing 
Requirements Are Not Jurisd ic tional.......... 10

II. RELATED TITLE VII PROVISIONS
CONFIRM THAT THE CHARGE-FILING 
REQUIREMENT IS
NONJURISDICTIONAL........ ............................... 14

TABLE OF CONTENTS

PAGE



TABLE OF CONTENTS

PAGE

III. CONSIDERATIONS OF JUDICIAL 
EFFICIENCY AND FAIRNESS 
INDICATE THAT THE CHARGE-FILING 
REQUIREMENT IS NOT
JURISDICTIONAL.................................................18

CONCLUSION 22



Ill

Albemarle Paper Co. u. Moody,
422 U.S. 405 (1975)........   1

Alexander u. Gardner-Denver Co.,
415 U.S. 36 (1974)...................................... ....passim

Anderson v. City o f Bessemer City,
470 U.S. 564 (1985).....................................................1

Arbaugh v. Y  & H  Corp.,
546 U.S. 500 (2006)......................................... passim

Castner v. Colo. Springs Cablevision,
979 F.2d 1417 (10th Cir. 1992)....................... ......10

Doe v. Oberweis Dairy,
456 F.3d 704 (7th Cir. 2006).................................... 8

EEOC v. Associated Dry Goods Corp.,
449 U.S. 590 (1981)..................................  9

Fogerty v. Fantasy, Inc.,
510 U.S. 517 (1994)................ .............................. 2, 5

Ford Motor Co. v. EEOC,
458 U.S. 219 (1982).................................................. 13

Forehand v. Fla. State Hosp. at 
Chattahoochee,
89 F.3d 1562 (11th Cir. 1996)................................15

TABLE OF AUTHORITIES

PAGE(S)

CASES



IV

General Tel. Co. of the Nw., Inc. v. EEOC,
446 U.S. 318 (1980).................................................... 8

Gonzalez u. Thaler,
565 U.S. 134 (2012).....................................17, 19, 20

Gooding v. Warner-Lambert Co.,
744 F.2d 354 (3d. Cir. 1984).................................. 15

Griggs v. Duke Power Co.,
401 U.S. 424 (1971)..................................................1

Harris v. Amoco Prod. Co.,
768 F.2d 669 (5th Cir. 1985)............................15, 16

Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011)........................................... 17, 18

Hobby Lobby Stores, Inc. v. Sebelius,
723 F.3d 1114 (10th Cir. 2013), a ff’d sub 
nom. Burwell v. Hobby Lobby Stores,
Inc., 573 U.S. 682 (2014)........................................15

Huri v. Office of the Chief Judge of the 
Circuit Court of Cook Cty.,
804 F.3d 826 (7th Cir. 2015).................................. 10

Jones v. Am. State Bank,
857 F.2d 494 (8th Cir. 1988).................................. 15

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES



V

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES

Kremer v. Chemical Constr. Corp.,
456 U.S. 461 (1982)...................................................,6

Landgraf v. U SIF ilm  Prods.,
511 U.S. 244 (1994).................................................. 18

Lewis v. City of Chicago,
560 U.S. 205 (2010).................................................... 1

Mach Mining, LLC u. EEOC,
135 S. Ct. 1645 (2015)..............................................17

Martinez-Rivera v. Puerto Rico,
812 F.3d 69 (1st Cir. 2016)..............................15, 16

N. Y. Gaslight Club, Inc. u. Carey,
447 U.S. 54 (1980)...................................................... 5

National R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002)................................................... 1

Occidental Life Ins. Co. of Cal. v. EEOC,
432 U.S. 355 (1977)...................................................8

Perdue v. Roy Stone Transfer Corp.,
690 F.2d 1091 (4th Cir. 1982)................................16

Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971)...................................................1



VI

Pietras v. Bd. of Fire Comm’rs of 
Farmingville Fire Dist.,
180 F.3d 468 (2d. Cir. 1999).................................. 15

Pullm an-Standard u. Swint,
456 U.S. 273 (1982).................................................... 1

Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 (2010)........................................... 14, 18

Rivers v. Barberton Bd. o f Educ.,
143 F.3d 1029 (6th Cir. 1998)......................... 15, 16

Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145 (2013).................................................. 21

Surrell v. Cal. Water Serv. Co.,
518 F.3d 1097 (9th Cir. 2008)......................... 15, 16

Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002).....................................................1

Union Pac. Ry. Co. v. Bhd. of Locomotive 
Engineers,
558 U.S. 67 (2009).....................................................14

United States v. Kwai Fun Wong,
135 S. Ct. 1625 (2015).........................................3, 13

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES



vii

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES

United States v. Spaulding,
802 F.3d 1110 (10th Cir. 2015)...................... ....... 13

Williams v. WMATA,
721 F.2d 1412 (D.C. Cir. 1983)..............................15

Worth v. Tyler,
276 F.3d 249 (7th Cir. 2001).................................. 15

Yellow Freight System, Inc. u. Donnelly,
494 U.S. 820 (1990)....................................................6

Zipes u. Trans World Airlines, Inc.,
455 U.S. 385 (1982).........................................passim

STATUTES & ACTS

42 U.S.C.
§ 2000e-5(f)(l)............................................... 7, 15, 16
§ 2000e-5(f)(3)....................................................16, 17

Civil Rights Act of 1964, Pub. L. 88-352,
78 Stat. 241 (1964)................................................ 6, 7

Equal Employment Opportunity Act of 
1972, Pub. L. 92-261, 86 Stat. 103 (1972) 7



V l l l

OTHER AUTHORITIES

Amy Myrick et. al., Race and
Representation: Racial Disparities in 
Legal Representation for Employment 
Civil Rights Plaintiffs, 15 N.Y.U. J.
Legis. & Pub. Pol’y 705 (2012)............................... 11

Berta E. Hernandez, Title VII v. Seniority:
The Supreme Court Giveth and the 
Supreme Court Taketh Away, 35 Am. U.
L. Rev. 339 (1986).......................................................2

Eric Foner, Remarks at the Conference on 
the Second Founding November 14,
2008, 11 U. Pa. J. Const. L. 1289 (2009)................4

Francis J. Vaas, Title VII: Legislative
History, 7 B.C. L. Rev. 4 31 .......................................6

H erbert Hill, The Equal Employment 
Opportunity Acts o f 1964 and 1972: A  
Critical Analysis o f the Legislative 
History and Adm inistration of the L a w ............ 8-9

Jack Greenberg, Crusaders in the Courts
(1994).................................................................... 1, 2, 6

Jack M. Balkin, The Reconstruction Power,
85 N.Y.U. L. Rev. 1801 (2010)................................. 4

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)



IX

OTHER AUTHORITIES

II Linderman et al., Employment
Discrimination Law  (5th ed. 2012)................12, 16

Sean Farhang, Congressional Mobilization 
of Private Litigants: Evidence from the 
Civil Rights Act o f 1991, 6 J. Empirical 
Legal Stud. 1 (2009)............ ...................................... 9

Sean Farhang, The Political Development of 
Job Discrimination Litigation, 1963- 
1976, 23 Stud. Am. Pol. Dev. 23 (2009).........5, 6, 9

Stephanie Bornstein, Rights in Recession:
Toward Administrative  
Antidiscrimination Law, 33 Yale L. &
Pol’y Rev. 119 (2014).....................................5, 6, 7, 9

Susan D. Carle, A Social Movement History 
of Title VII Disparate Impact Analysis,
63 Fla. L. Rev. 251 (2011).............. .......................... 4

Susan D. Carle, How M yth-Busting About 
the Historical Goals of Civil Rights 
Activism Can Illum inate Future Paths, 7 
Stan. J. Civ. Rts. & Civ. Liberties 167 
(2011 ) ..................................................................................................4

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)



INTEREST OF AMICUS CURIAE1
The NAACP Legal Defense & Educational Fund, 

Inc. (“LDF”) is the nation’s first and foremost civil 
rights legal organization. Through litigation, 
advocacy, public education, and outreach, LDF strives 
to secure equal justice under the law for all 
Americans, and to break down barriers th a t prevent 
African Americans from realizing their basic civil and 
hum an rights.

Since the enactm ent of the Civil Rights Act of 
1965, LDF has helped Americans vindicate their 
rights under Title VII by means of its private right of 
action.2 LDF represented plaintiffs in cases such as, 
inter alia, Griggs v. Duke Power Co., 401 U.S. 424 
(1971), Phillips u. M artin Marietta Corp., 400 U.S. 
542 (1971), Albemarle Paper Co. u. Moody, 422 U.S. 
405 (1975), Pullm an-Standard u. Swint, 456 U.S. 273 
(1982), Anderson v. City of Bessemer City, 470 U.S. 
564 (1985), and Lewis v. City of Chicago, 560 U.S. 205 
(2010). LDF has also filed amicus briefs in this Court 
in im portant Title VII cases such as Swierkiewicz u. 
Sorema N.A., 534 U.S. 506 (2002), and National R.R. 
Passenger Corp. v. Morgan, 536 U.S. 101 (2002). LDF

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
curiae state th a t no counsel for a party authored this brief in 
whole or in part and th a t no person other than  amicus curiae, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief. Pursuant to Supreme 
Court Rule 37.3, counsel for amicus curiae state tha t both 
parties have filed blanket consent to the filing of amicus briefs.
2 See, e.g., Jack Greenberg, Crusaders in the Courts 412-29 
(1994).



2

has a strong in terest in the proper interpretation and 
application of Title VII.

INTRODUCTION AND 
SUMMARY OF ARGUMENT

Title VII is an essential part of one of our nation’s 
most im portant civil rights laws, the Civil Rights Act 
of 1964.3 It is designed to ensure th a t employment 
opportunities—the key for most Americans to 
economic security and social mobility—are not 
limited by a person’s race, religion, sex, or national 
origin. Title VII’s private right of action is central to 
achieving th is goal, and private plaintiffs have played 
a major role in enforcing the sta tu te .4 T hat was 
Congress’s expectation and intent. See Fogerty v. 
Fantasy, Inc., 510 U.S. 517, 523 (1994).

In crafting the private right of action, Congress 
chose to create statutory preconditions for th a t aspect 
of Title VII. This case involves the precondition 
m andating th a t plaintiffs file a charge with the Equal 
Employment Opportunity Commission (EEOC). No 
one questions th a t the requirem ent is in fact a 
requirem ent, or th a t it serves useful purposes. The 
issue is w hether Congress m eant to condition the 
judiciary’s ability to exercise its power on strict 
compliance with this requirem ent, even if an 
employer does not raise it as a defense. Every relevant 
indication suggests th a t Congress did not.

3 See, e.g., Berta E. Hernandez, Title VII v. Seniority: The 
Supreme Court Giveth and the Supreme Court Taketh Away, 35 
Am. U. L. Rev. 339, 344 & n.31 (1986) (citing B. Schlei & P. 
Grossman, Employment Discrimination Law  vii (2d ed. 1983)).
4 See, e.g., Greenberg, supra note 2, a t 412—29 (describing LDF’s 
work representing private plaintiffs in the early years of Title 
VII).



3

Congress knew, and this Court has recognized, 
th a t unschooled nonlawyers would often be tasked 
with satisfying Title VII’s statu tory  preconditions. 
Classifying those preconditions as jurisdictional can 
have severe results for those private parties’ access to 
justice and their ability to carry out the responsibility 
th a t Congress tasked them  with as private attorneys 
general. And, the incorrect classification of a rule as 
jurisdictional creates a risk of sandbagging and places 
unw arranted burdens on the lower courts.

“[Procedural rules . . . cabin a court’s power only 
if Congress has clearly state [d] as much.” United 
States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015) 
(internal quotation m arks and citation omitted) 
(second alteration in original). That m andate applies 
with special force to a statutory scheme aimed at 
providing all Americans with access to the courts to 
defend themselves from discrimination at work. The 
Court should affirm th a t principle and affirm the 
court below.

ARGUMENT

I. ACCESS TO A ROBUST PRIVATE RIGHT 
OF ACTION IS INTEGRAL TO TITLE VII’S 
EFFECTUATION.

A. Congress Fashioned the Private Right of 
Action as a Primary Mechanism for 
Compelling Compliance with Title VII.

Of the many ways racism has blighted our 
democracy, economic and employment-based injustice



4

and exclusion rank among the most pervasive.5 
Slavery involved the unadulterated  theft of African 
American labor.6 Even in the non-slave states, 
antebellum  African Americans were relegated to 
“m enial employment in service positions[,]”7 After the 
Civil War, the reign of terror th a t swept the South 
was motivated, in part, by a desire to ensure a 
racialized employment hierarchy th a t forced African 
Americans “into the least rem unerative and lowest- 
sta tus employment sectors.”8 In the leadup to the 
Civil Rights Act of 1964, it was clear th a t African 
Americans “would never be free and equal citizens” if 
private discrimination—e.g., employment
discrimination—continued unchecked.9 It was no 
accident th a t the famed 1963 March on W ashington 
was titled, in full, the “March on W ashington for Jobs 
and Freedom.”10

5 See, e.g., Susan D. Carle, A Social Movement History o f Title 
VII Disparate Impact Analysis, 63 Fla. L. Rev. 251, 262-67 
(2011) [hereinafter A Social Movement History}.
6 See, e.g., Eric Foner, Remarks at the Conference on the Second 
Founding November 14, 2008, 11 U. Pa. J. Const. L. 1289, 1292
6  n.13 (2009) (quoting President Lincoln’s Second Inaugural).
7 Susan D. Carle, How M yth-Busting About the Historical Goals 
of Civil Rights Activism Can Illum inate Future Paths, 7 Stan. J. 
Civ. Rts. & Civ. Liberties 167, 169 (2011) [hereinafter Myth- 
Busting]; see also A  Social Movement History, supra note 5, a t 
262 & n.63.
8 A  Social Movement History, supra note 5, a t 263 & n.65; see 
also M yth-Busting, supra note 7, a t 169—71 (observing racist 
economic exclusion in South and North).
9 Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 
1801, 1834 (2010).
10 Id. a t 1833 (observing th a t the full name was “a reference to 
private employment discrimination”).



5

Against tha t backdrop, Congress included Title 
VII in the Civil Rights Act of 1964, “to assure equality 
of employment opportunities by elim inating those 
practices and devices th a t discriminate on the basis of 
race, color, religion, sex, or national origin.” 
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 
(1974). To accomplish th a t goal, Congress selected 
“private attorney[s] general” as its “chosen 
in strum en t^ .]” Fogerty, 510 U.S. a t 523 (first 
alteration in original) (internal quotation m arks and 
citations omitted); see also N.Y. Gaslight Club, Inc. v. 
Carey, 447 U.S. 54, 63 (1980). Accordingly, in its 
earliest form Title VII included the private right of 
action Respondent employed here, see Alexander, 415 
U.S. a t 45.

This choice was critical. The adm inistrative 
agency created as part of Title VII—the EEOC— 
initially lacked power either to bring suit or issue 
binding orders to employers.11 This was a deliberate 
choice, the product of key congressmembers’ demand 
th a t the EEOC not follow the model of the National 
Labor Relations Board, i.e., an agency with the power 
to issue final decisions to which the courts would defer 
substantially.12 Rather than  grant the EEOC 
ultim ate adjudicatory authority over employment 
discrimination allegations, Congress instead chose to 
leave “final responsibility for enforcement of Title 
VII” with the federal courts, principally via de novo

11 See Stephanie Bornstein, Rights in Recession: Toward 
Adm inistrative Antidiscrimination Law, 33 Yale L. & Pol'y Rev. 
119, 127-28 (2014)
12 See id. a t 127; Sean Farhang, The Political Development o f Job 
Discrimination Litigation, 1963-1976, 23 Stud. Am. Pol. Dev. 23, 
32-33 (2009).



6

suits brought by private parties. Alexander, 415 U.S. 
a t 44; see also Yellow Freight System, Inc. v. Donnelly, 
494 U.S. 820, 824 n.4 (1990); Kremer v. Chemical 
Constr. Corp., 456 U.S. 461, 469-70 & n.7 (1982); 
Alexander, 415 U.S. a t 60 & n.21.13 Congress showed 
its commitment to this path by granting courts 
authority to waive filing fees and appoint counsel for 
plaintiffs, and providing for attorney’s fees to winning 
plaintiffs—all departures from the baseline ru les.14 In 
the years following 1964, private parties relying on 
the private right of action worked a transform ation 
“almost on par with the campaign th a t won Brown [u. 
Board of Education, 347 U.S. 483 (1954)] .”15

To be sure, Title VII does not work only through 
litigation. In  fact, Congress sought to make 
“cooperation and voluntary compliance” the 
“preferred m eans” of achieving the sta tu te ’s goals. 
Alexander, 415 U.S. a t 44. To th a t end, Congress 
established procedures to aid and guide conciliation. 
Among other things, it established statutory 
preconditions for access to the private right of action, 
including the charge-filing requirem ent a t issue here. 
See Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 
241, 260, § 706(e) (1964). Despite one set of 
amendments to its operation, th a t requirem ent

13 See also Bornstein, supra note 11, a t 126-28. The only 
exception was th a t the Attorney General could sue employers 
who exhibited a “pattern  or practice of resistance” to the rights 
Title VII secured. See Francis J. Vaas, Title VII: Legislative 
History, 7 B.C. L. Rev. 431, 452 & n.90 (citing Civil Rights Act of 
1964, Pub. L. 88-352, 78 Stat. 241, 261, § 707(a) (1964)).
14 See Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241, 260- 
61, § 706(e), (k) (1964); Farhang, supra note 12, a t 37-38.
15 Greenberg, supra note 2, a t 412.



7

effectively works today as it did in 1964. As it did 
then, it requires the putative plaintiff to file a charge 
stemming from an unlawful employment practice 
within a certain amount of time. If the EEOC 
dismisses the charge, or if within a certain time 
period the EEOC has neither “entered into a 
conciliation agreem ent” to which the aggrieved 
person is party  nor filed su it16 on the charge, the 
sta tu te  requires the EEOC to notify17 the charge filer 
of the right to sue the entity named in the charge, a t 
which point the individual may sue. 42 U.S.C. 
§ 2000e-5(f)(l).18

Like the other presuit requirements, the charge­
filing requirem ent at bottom works to “give the 
[EEOC] a chance to investigate the charge and decide 
whether to sue” (ever since the 1972 amendments 
gave it th a t power) and “to encourage the complainant 
and the employer, with or without [a] state  agency’s

16 In a case involving a governmental entity, the Attorney 
General is the entity with the option of filing suit. See 42 U.S.C. 
§ 2000e-5(f)(l).
17 In a governmental-entity case, the Attorney General has the 
notification responsibility. See 42 U.S.C. § 2000e~5(f)(l).
18 Title VII’s 1972 amendm ents changed the post-charge events 
necessary to trigger the notification to the charge filer. 
Originally the private charge filer was able to obtain the 
notification if the EEOC was unable to “obtain voluntary 
compliance” within a particular time period. See Civil Rights Act 
of 1964, Pub. L. 88-352, 78 Stat. 241, 260, § 706(e) (1964). The 
current mechanism stems from the 1972 amendments. See 
Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 
Stat. 103, 105—06 (1972) (establishing steps now found in 42 
U.S.C. § 2000e-5(f)(l)). The underlying principle did not change: 
if enough time passes and the situation rem ains unresolved from 
the employee’s perspective, he or she should be able to sue. See 
Bornstein, supra  note 11, at 128.



8

or the EEOC’s assistance, to resolve their dispute 
informally.” Doe v. Oberweis Dairy, 456 F.3d 704, 708 
(7th Cir. 2006). But Congress was not naive; 
conciliation and cooperation cannot eradicate all 
deep-rooted bias. Sometimes compliance m ust be 
compelled. The presuit requirem ents contemplate 
th a t conciliation may not resolve the issues on the 
table, and they perm it an individual who has filed a 
charge to exit the process based on nothing more than  
their preference and the passage of time. See 
Occidental Life Ins. Co. o f Cal. v. EEOC, 432 U.S. 355, 
365—66 (1977) (agreeing th a t the “private right of 
action . . .  is designed to make sure th a t the person 
aggrieved does not have to endure lengthy delays” 
caused by the EEOC and works to ensure a remedy 
where there is “agency inaction, dalliance or dismissal 
of the charge, or unsatisfactory resolution” (citation 
omitted)); see also supra note 18.

Title VII’s major amendments have reiterated 
the private right of action’s importance. Thus, while 
the 1972 amendments gave the EEOC authority to 
sue on a charge if it chose and increased some of its 
investigative power (while still denying it the power 
to issue binding orders), th a t increase in EEOC power 
“was intended to supplement, not replace, the private 
action.” General Tel. Co. of the Nw., Inc. v. EEOC, 446 
U.S. 318, 326 (1980); see also Alexander, 415 U.S. at 
44-45. Indeed, Congress declined to adopt proposals 
to eliminate or weaken the private right of action 
during the debates leading up to the 1972 
am endm ents.19 During those debates, proponents of

19 Herbert Hill, The Equal Employment Opportunity Acts o f 1964 
and 1972: A  Critical Analysis of the Legislative History and



9

robust civil rights enforcement like LDF Director- 
Counsel Jack Greenberg emphasized th a t the private 
right of action was “essential” to Title VII’s 
operation.20 It was ultim ately retained, and 
“remain[ed] . . . essential” to Title VII’s operation. 
Alexander, 415 U.S. a t 45; see also EEOC u. Associated 
Dry Goods Corp., 449 U.S. 590, 602 n.21 (1981) 
(observing th a t the 1972 amendments provided a 
“strong reaffirm ation of the importance of the private 
right of action in the Title VII enforcement scheme”).

For their part, the 1991 amendments to Title VII 
“doubled down on [Congress’s] reliance on private 
lawsuits as the prim ary means of enforcing the Act.”21 
Faced with evidence th a t meritorious private cases 
were not being brought because of a dearth  of counsel 
to prosecute them ,22 Congress sought to strengthen 
private remedies to encourage the private bar to 
represent private plaintiffs.23

Today, in keeping with Congress’s original plan, 
private suits continue to be the prim ary means of 
enforcing Title VII.24 As this Court observed in 1974, 
“Congress . . . thought it necessary to provide a 
judicial forum for the ultim ate resolution of 
discriminatory employment claims.” Alexander, 415

Administration of the Law, 2 Berkeley J. Emp. & Lab. L. 1, 35- 
38 (1977); Farhang, supra note 12, a t 44.
20 Hill, supra  note 19, a t 37 (citation omitted).
21 Bornstein, supra note 11, a t 129.
22 See Sean Farhang, Congressional Mobilization of Private 
Litigants: Evidence from the Civil Rights Act o f 1991, 6 J. 
Empirical Legal Stud. 1, 12-13 (2009).
23 Bornstein, supra note 11, a t 129, 131.
24 See id. a t 130 (plaintiffs file over 50 times as many law suits as 
the EEOC manages to file).



10

U.S. a t 60 n.21. And it rem ains “the duty of courts to 
assure the full availability of [that] forum.” Id.

B. The History, Purpose, and Role of Title 
VII’s Private Attorneys General Confirm 
that Presuit Filing Requirements Are 
Not Jurisdictional.

This case is about how Congress intended to 
condition access to the judicial forum and the effect— 
if any—it intended a private person’s noncompliance 
with presuit conditions to have on judicial power to 
hear Title VII cases, even when they are not timely 
raised by a defendant. This Court has long understood 
th a t the history and purpose of Title VII shape tha t 
inquiry. See, e.g., Zipes v. Trans World Airlines, Inc., 
455 U.S. 385, 393 (1982).

Here, the importance of private attorneys general 
in enforcing Title VII weighs against interpreting 
presuit filing requirem ents as jurisdictional. Lay 
people generally initiate Title VII’s machinery 
without legal aid. See id. a t 397; Huri u. Office o f the 
Chief Judge of the Circuit Court o f Cook Cty., 804 F.3d 
826, 831 (7th Cir. 2015) (“Most EEOC charges are . . . 
drafted by laypersons ra ther than  law yers[.]”). 
Congress knew, moreover, th a t these laypersons 
would often be unschooled relative to the average civil 
litigant. See Castner v. Colo. Springs Cablevision, 979 
F.2d 1417, 1421 (10th Cir. 1992) (“Title VII actions 
more often than  not pitQ parties of unequal strength 
and resources against each other. The complainant, 
who is usually a member of a disadvantaged class, is 
opposed by an employer who not infrequently is one 
of the nation’s major producers, and who has at his 
disposal a vast array of resources and legal talen t.”



11

(quoting H.R. Rep. No. 238, 92d Cong., 2d Sess., 
reprinted in 1972 U.S.C.C.A.N. 2137, 2148)).25

The potential difficulties for a lay attorney 
general seeking to fully comply with Title VII’s 
charge-filing requirem ent underscores the 
impropriety of calling it jurisdictional. See Arbaugh u. 
Y  & H  Corp., 546 U.S. 500, 513—15 (2006) (looking to 
the “consequences” and potential “unfair[ness]” of 
typing a Title VII rule jurisdictional (alteration in 
original) (citation omitted)). Here, before filing suit, 
Respondent wrote “Religion” in the “Other” box in the 
section of the Texas employment-discrimination 
agency’s questionnaire captioned “Employment 
Harms or Actions.” J.A. 71, 89-90. The signature box 
of th a t questionnaire described the document as a 
“charge” th a t would “be filed with . . .  the EEOC[.]” Id. 
90. It is not hard  to imagine a reasonable nonlawyer 
believing this met the statu tory  requirem ent.26 
W ithout more, th a t might not excuse noncompliance, 
but it ought to be relevant to a court’s decision 
whether (for example) a defendant who raises 
noncompliance late in the day can achieve dismissal.

25 Recent statistics support this analysis. A 2012 study found 
th a t more than  20% of plaintiffs filing discrimination claims in 
court represent themselves a t the time of filing. Amy Myrick et. 
al., Race and Representation: Racial Disparities in Legal 
Representation for Employment Civil Rights Plaintiffs, 15 
N.Y.U. J. Legis. & Pub. Pol'y 705, 714 & tbl. 1(2012). Those 
numbers are surely more pronounced a t the presuit filing stage. 
W hat’s more, race plays a role, with African American plaintiffs 
nearly three times as likely as white plaintiffs to represent 
themselves when filing discrimination lawsuits. Id.
26 W hether Respondent in fact failed to meet the requirem ent 
rem ains a disputed question not presented for this Court’s 
decision. See Resp. Br. a t 46 n.17. The point is th a t what 
compliance entails may not be obvious to a nonlawyer.



12

After all, the “general consensus” th a t “courts may not 
consider bases of discrimination th a t are not asserted 
in the charge” is one th a t “courts generally have 
applied . . . flexibly, as a condition precedent[.]” II 
Linderman et al., Employment Discrimination Law  
29-28 to 29-30 (5th ed. 2012).

Worse, the harsh  jurisdictional rule Petitioner 
seeks would affect plaintiffs beyond this context. 
Consider, for example, a complainant who believes 
she was retaliated  against because of her race. A lay 
complainant should not be expected to have the 
m astery of Title VII’s legal categories th a t would 
ensure th a t her charge’s description of her experience 
parses out those categories, or th a t she checks both 
“race” and “retaliation” on a given checkbox array. 
But under Petitioner’s rule, her failure to do so may 
have created a snare th a t could require her case’s 
dismissal, despite any considerations of equity or 
judicial efficiency. As Respondent points out, 
Petitioner would transform  the myriad ways th a t a 
defendant might question a charge’s “adequacy” into 
jurisdictional issues. Resp. Br. a t 32-33. Given the 
potential complexity of these questions, and the 
prevalence of lay filers, it is unreasonable to conclude 
th a t Congress m eant to strip the courts of the power 
to make equitable considerations in term s of burden, 
fairness, and efficiency when analyzing charge filings. 
On the contrary, the remedial purpose of Title VII 
requires tha t courts retain  the power to employ 
equitable considerations in determining whether a 
party  has met its statu tory  requirem ents. See Zipes, 
455 U.S. a t 397-98.

The informal and reconciliation-minded EEOC 
process may benefit victims of discrimination by



13

affording a venue for relief before they reach 
litigation. But when they come to court, an 
unw arranted jurisdictional gloss on Title VII’s 
charge-filing provisions may strip them  of a fair 
chance to vindicate their rights under the sta tu te  by 
allowing an employer to raise the issue even after 
years of litigation, discovery, dispositive motions, and 
even appeals. That result a t least undoes years th a t a 
plaintiff may have invested in seeking a remedy. 
While always wasteful, this sort of delay is “especially 
unfortunate” in the Title VII context, where “[t]he 
claim ant cannot afford to stand aside while the 
wheels of justice grind slowly toward . . . ultim ate 
resolution[.]” Ford Motor Co. u. EEOC, 458 U.S. 219, 
221 (1982).

Nothing in the statu te  indicates, let alone clearly, 
th a t Congress m eant to allow such interference with 
the enforcement of Title VII by private plaintiffs. See 
Kwai Fun Wong, 135 S. Ct. a t 1632 (recognizing tha t 
a “procedural rule[]” can be jurisdictional “only i f ’ 
Congress clearly indicates it as such); United States 
u. Spaulding, 802 F.3d 1110, 1129 (10th Cir. 2015) 
(Gorsuch, J., dissenting) (“[W]e should read 
legislation as ‘cabin [ing] a court’s power’—its 
jurisdiction—‘only if Congress has clearly stated as 
much.’” (quoting Kwai Fun Wong, 135 S. Ct. a t 1632) 
(second alteration in original)). The Court can affirm 
th a t a charge is statutorily required without imposing 
this severe result.



14

II. RELATED TITLE VII PROVISIONS
CONFIRM THAT THE CHARGE-FILING
REQUIREMENT IS NONJURISDICTIONAL.

Statutory context m atters. See, e.g., Reed 
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010) 
(“[CJontext, including this Court’s interpretation of 
sim ilar provisions in many years past, is relevant to 
w hether a sta tu te  ranks a requirem ent as 
jurisdictional.”). Judicial treatm ent of the most 
closely related Title VII provisions confirms the 
charge-filing requirem ent is not jurisdictional.

First, consider Zipes, which, a t a minimum, held 
th a t timely filing a charge was nonjurisdictional. See 
455 U.S. a t 393. And, in addressing the specific issue 
of timeliness, the Court stated  even more broadly th a t 
“Congress necessarily adopted the view th a t the 
provision for filing charges with the EEOC should not 
be construed to erect a jurisdictional prerequisite to 
suit in the district court.” Id. a t 397. Later cases 
describing Zipes have picked up on th a t principle. See 
Reed Elsevier, Inc., 559 U.S. a t 169 n.8 (“[0]ur holding 
in Zipes [was] th a t Title VII’s EEOC filing 
requirem ent was nonjurisdictional[.]”); Union Pac. 
Ry. Co. v. Bhd. o f Locomotive Engineers, 558 U.S. 67, 
83 (2009) (“[PJresuit resort to the EEOC [was] held 
forfeitable in Zipes[.]”). This is inconsistent with 
Petitioner’s desired distinction between timely filing 
and filing a charge at all. See Pet’r Br. a t 34. Even if 
the distinction could be drawn, Petitioner’s 
interpretation would create the anomalous result of 
Title VII containing two intricately interwoven 
charge requirem ents, one of which is jurisdictional 
and one of which is not. These directives to the 
individual—file a charge, and ensure it is timely—



15

seem to “speak” equally “to the rights or obligations” 
of th a t individual, which should render them  both 
nonjurisdictional “‘claim-processing’” rules. Hobby 
Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1158 
(10th Cir. 2013) (Gorsuch, J., concurring) (quoting 
Reed Elsevier, 559 U.S. a t 161), a ff’d sub nom. Burwell 
v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

The other major presuit requirem ent is the 
“giving of [a] notice” (i.e., the “right-to-sue letter”) by 
the EEOC (or Attorney General in a case involving a 
governmental entity) th a t the EEOC has dismissed 
the charge, failed to reach a conciliation agreement to 
which the aggrieved person is party, or failed to sue 
the party  named in the charge. 42 U.S.C. § 2000e- 
5(f)(1).27 The lower courts th a t have addressed the 
issue have held this requirem ent not to be a 
jurisdictional prerequisite.28 Those courts have

27 The Attorney General, rather than the EEOC, is granted the 
power to sue in cases involving governmental entities. 42 U.S.C. 
§ 2000e-5(f)(l).
28 See Martinez-Rivera v. Puerto Rico, 812 F,3d 69, 77-78 (1st 
Cir. 2016) (Americans with Disabilities Act case incorporating 
Title VII’s presuit provisions); Pietras v. Bd. of Fire Comm’rs of 
Farmingville Fire Dist., 180 F.3d 468, 474 (2d. Cir. 1999); 
Gooding v. Warner-Lambert Co., 744 F.2d 354, 358 (3d. Cir.
1984) ; Harris v. Amoco Prod. Co., 768 F.2d 669, 679—80 (5th Cir.
1985) ; Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1031-32 
(6th Cir. 1998); Worth v. Tyler, 276 F.3d 249, 259 (7th Cir. 2001); 
Jones v. Am. State Bank, 857 F.2d 494, 499-500 (8th. Cir. 1988); 
Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1104-05 (9th Cir. 
2008); Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 
1562, 1569—70 & n.17 (11th Cir. 1996); Williams v. WMATA, 721 
F.2d 1412, 1418 n.12 (D.C. Cir. 1983) (per curiam). The Fourth 
Circuit’s law is harder to categorize. Beginning in a 1982 case 
(which did not cite Zipes), it has said th a t “entitlem ent” to a 
right-to-sue letter is jurisdictional although its “issuance or



16

understood Zipes properly: as establishing a broad 
interpretive principle for Title VII’s presuit 
requirem ents. For example, many explicitly invoke 
Zipes’s methodology, see 455 U.S. a t 393-94, in asking 
whether Title VII’s jurisdictional provision, 42 U.S.C. 
§ 2000e-5(f)(3), contains or refers to the right-to-sue 
requirem ent (it does not). See, e.g., Martinez-Rivera v. 
Puerto Rico, 812 F.3d 69, 77 (1st Cir. 2016); Surrell v. 
Cal. Water Serv. Co., 518 F.3d 1097, 1104 (9th Cir. 
2008); Rivers v. Barberton Bd. o f Educ., 143 F.3d 
1029, 1032 (6th Cir. 1998); Harris v. Amoco Prod. Co., 
768 F.2d 669, 680 (5th Cir. 1985). The law here is 
sufficiently clear for a leading treatise  to state  simply 
th a t “[cjourts have not treated [receipt of the right-to- 
sue letter] as a jurisdictional prerequisite to suit 
under Title VII[.]” Linderman et al., supra, a t 29-9.

Petitioner’s amici miss the m ark in suggesting 
otherwise. See Br. Amici Curiae of the Center for 
Workplace Compliance, National Federation of 
Independent Business Small Business Legal Center, 
Chamber of Commerce of the United States of 
America, and National Retail Federation at 10, 12, 18. 
Indeed, amici inadvertently underm ine their 
argum ent by citing Mach M ining  to support it. See id. 
a t 12 (citing Mach Mining, LLC v. EEOC, 135 S. Ct. 
1645, 1651 (2015)). On the page of th a t opinion amici

receipt” is not—a holding based on considerations of “equity” and 
statutory “polic[y].” Perdue v. Roy Stone Transfer Corp., 690 F.2d 
1091, 1091, 1093-95 (4th Cir. 1982). This “entitlem ent” rule 
arguably crafts an equitable exception to a statutory provision 
th a t asks whether the letter has been “giv[en][,]” 42 U.S.C. 
§ 2000e-5(f)(l). Its references to “jurisdiction” may be best 
explained as one of the formerly prevalent “drive-by 
jurisdictional rulingfs]” th a t this Court has worked to eradicate. 
Arbaugh, 546 U.S. a t 511 (citation omitted).



17

cite, this Court first explained th a t plaintiffs may sue 
under Title VII “only i f ’ they have “first filed a timely 
charge” and th a t courts “usually” dismiss a complaint 
for noncompliance. Mach Mining, 135 S. Ct. a t 1651. 
That is, as Zipes holds, noncompliance is sometimes 
excusable. “Similarly,” the Court continued, “an 
employee m ust obtain a right-to-sue letter” to sue— 
“and a court will typically insist on satisfaction of tha t 
condition.” Id. (emphasis added). A jurisdictional 
requirem ent admits of no exceptions, typical or 
atypical. Mach Mining, in other words, aligns with 
the consistent approach of the lower courts: receipt of 
the right-to-sue letter is not jurisdictional.

The tim eliness requirem ent and the right-to-sue- 
letter requirem ent are like the charge-filing 
requirem ent in every way th a t m atters.29 All relevant 
parts of the process, they “seek to promote the orderly 
progress of litigation by requiring th a t the parties 
take certain procedural steps a t certain specified 
tim es.” Henderson ex rel. Henderson v. Shinseki, 562 
U.S. 428, 435 (2011) (describing nonjurisdictional 
“claim-processing rules”). And, all situated outside of 
Title VII’s “jurisdictional provision, 42 U.S.C. § 2000e- 
5(f)(3),” Arbaugh, 546 U.S. a t 515, they give no h in t of 
“govern[ing] a court’s adjudicatory authority[,]” 
Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (internal 
quotation m arks and citation omitted). While filing 
deadlines are “quintessential claim-processing rules,” 
Henderson, 562 U.S. a t 435, no case suggests tha t 
filing deadlines are the only nonjurisdictional claim­

29 Amicus assum es for present purposes th a t the “timeliness 
requirem ent” and the “charge-filing requirem ent” are indeed 
independent, as Petitioner apparently believes, given th a t it is 
not asking this Court to overrule Zipes.



18

processing rules. There are many ways a requirem ent 
may “speak . . .  to the rights or obligations of the 
parties” ra ther than  to “the power of the court[.]” 
Landgraf v. U SIF ilm  Prods., 511 U.S. 244, 274 (1994) 
(quoting Republic N a t’l Bank of M iami v. United 
States, 506 U.S. 80, 100 (1992) (Thomas, J., 
concurring)).

That is exactly w hat the charge-filing 
requirem ent does. No one doubts th a t it is required, 
or th a t it serves useful purposes. But a condition 
should not “be ranked as jurisdictional merely 
because it promotes im portant congressional 
objectives.” Reed Elsevier, 559 U.S. a t 169 n.9. It 
certainly should not be classified as such where text 
and context do not indicate Congress m eant 
noncompliance to oust the courts of jurisdiction.

III. CONSIDERATIONS OF JUDICIAL 
EFFICIENCY AND FAIRNESS INDICATE 
THAT THE CHARGE-FILING
REQUIREMENT IS NOT JURISDICTIONAL.

This Court has long recognized th a t careless 
application of the word “jurisdictional” has negative, 
structural consequences for fairness and efficiency. 
See Henderson, 562 U.S. a t 435 (“Because the 
consequences th a t attach to the jurisdictional label 
may be so drastic, we have tried in recent cases to 
bring some discipline to the use of this term .”). Many 
sta tu tes impose prerequisites to filing on potential 
litigants, but “[a] statutory condition th a t requires a 
party  to take some action before filing a law suit is not 
automatically ‘a jurisdictional prerequisite to suit.’” 
Reed Elsevier, Inc., 559 U.S. a t 166 (quoting Zipes, 
455 U.S. a t 393).



19

Determining whether a requirem ent is 
jurisdictional requires looking not only a t the 
language, structure, and context of the statu te, but 
also at its purpose and the effect of a jurisdictional bar 
on fairness and judicial economy. See, e.g,, Gonzalez, 
565 U.S. a t 141—44 (finding th a t the “unfair prejudice” 
th a t would result from jurisdictional treatm ent of a 
provision counseled against holding it jurisdictional) 
(alteration omitted) (citation omitted); Arbaugh, 546 
U.S. a t 513-14 (resolving a Title VII jurisdictional 
question “mindful of the consequences” associated 
with “typing [it] a determ inant of subject-m atter 
jurisdiction”); id. a t 515 (finding it the “sounder 
course” to “refrain from constricting” federal-question 
jurisdiction or “Title VII’s jurisdictional provision” 
given “the unfair[ness] and waste of judicial 
resources” th a t a jurisdictional rule would cause 
(alteration in original) (internal quotation m arks and 
citation omitted); Zipes, 455 U.S. a t 398 (looking to 
the “remedial purpose of’ Title VII in refusing to hold 
a rule jurisdictional). That is particularly true in the 
Title VII context, where this Court’s interpretive 
“guiding principle” has been th a t “technical” readings 
are ‘“particularly inappropriate in a statutory scheme 
in which laymen, unassisted by trained lawyers, 
initiate the process.’” Zipes, 455 U.S. a t 397 (quoting 
Love v. Pullman Co., 404 U.S. 522, 527 (1972)). This 
case presents a paradigmatic example of how 
considerations of fairness and judicial economy 
counsel against a jurisdictional bar.

First, as discussed in P art I.B, the elevated risk of 
traps for the unwary in th is context counsel against 
interpreting the presuit filing requirem ent as 
jurisdictional.



20

Second, an unw arranted jurisdictional rule also 
underm ines judicial efficiency and perm its 
sandbagging. Characterizing any rule as 
jurisdictional inherently adds to the lower courts’ 
burden by obligating them  in every case to ensure the 
rule has been satisfied. See Arbaugh, 546 U.S. a t 514. 
Beyond th a t intrinsic burden, this case exemplifies 
the further potential drain on judicial resources from 
a jurisdictional rule. Here, Petitioner was put on 
notice of Respondent’s religious discrimination claim, 
at the latest, in January  2012. See J.A. 16, 22—24 
(original complaint raising religious discrimination 
claim filed January  13, 2012). The parties exchanged 
pleadings, engaged in discovery, filed dispositive 
motions, and appealed the district court’s resolution 
of those motions, all without Petitioner raising any 
question of the adequacy of the EEOC charge. See id. 
7-15 (district court docket). Only after years of 
litigation did Petitioner challenge the adequacy of the 
EEOC charge, requesting th a t the district court 
sum m arily discard years of work. This is exactly the 
type of potentially “wasted” effort th a t th is Court has 
warned should not be “lightly” mandated. Gonzalez, 
565 U.S. a t 141 (citation omitted).30

30 The operative complaint contains no state-law claims, but as 
this Court noted in Arbaugh, imposing a rule th a t would require 
the jurisdictional dismissal of a complaint’s federal claims would 
also require dismissing the “complaint in its entirety,” i.e., 
including any pendent state-law claims. 546 U.S. a t 514. 
Characterizing a rule as requiring merely a nonjurisdictional 
dismissal m eans the court “retains discretion” to keep 
jurisdiction over pendent state-law claims. Id. That discretion 
may be significant where a court has already expended 
substantial energy on the state-law claim and there is no reason 
the state courts would be better suited to address it.



21

Judicial efficiency is also protected by removing 
incentives for judicial resources to be misused. We do 
not know why Respondent failed to raise th is issue 
until years after it ought to have known of it. 
W hatever the cause in this case, typing this rule 
jurisdictional makes it more likely th a t defendants 
will fail to raise charge inadequacy until well into a 
case. It may encourage negligence on this front by 
reducing the cost of a defendant sleeping on its rights, 
and it may encourage a defendant—wisely or 
unwisely—to attem pt strategically to “hold in 
reserve” an inadequacy.

In sum, th is case involves a remedial statutory 
scheme protecting fundam ental civil rights, often 
initiated by unschooled and pro se litigants. It would 
be anomalous to prevent courts from applying 
principles of equity to the charge-filing requirement. 
Congress did not intend to “disarm litigants” and 
“waste . . .  adjudicatory resources,” Sebelius v. Auburn  
Reg’l Med. Ctr., 568 U.S. 145, 153 (2013), by 
conditioning federal jurisdiction on Title VII’s charge­
filing requirement.



22

CONCLUSION
Absent any indication th a t the charge-filing 

requirem ent has jurisdictional sta tus and given 
Congress’s clear in tent th a t the private right of action 
rem ain robust, this Court should reaffirm its “guiding 
principle” for interpreting Title VII and affirm the 
court below.

Respectfully submitted,

Sherrilyn A. Ifill 
Director-Counsel 

J anai S. Nelson 
Samuel Spital *
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector St., 5th Floor 
New York, NY 10006 
(212) 965-2200 
sspital@naacpldf.org

April 3, 2019

Kerrel Murray 
Sparky Abraham 
NAACP Legal Defense & 

Educational Fund, Inc. 
700 14th St., NW Suite 600 
W ashington, DC 20005

* Counsel of Record

Counsel for Amicus Curiae 
NAACP Legal Defense & 
Educational Fund, Inc.

mailto:sspital@naacpldf.org