Law Commons^™

In Fort Bend County v. Davis, the Supreme Court has been asked to decide whether Title VII's exhaustion requirement is jurisdictional. I argue that the Court should not answer that question because it is the wrong question. The real issue confronting the parties in the case is whether the district court was correct to dismiss a claim for failure to exhaust when the defendant failed to raise the exhaustion defect until summary judgment. That issue implicates the effects of the defect, not its character. Those effects can be determined from ordinary principles of statutory interpretation. The parties and the …