Transgender Plaintiff’s Case Revived by Second Circuit Court of Appeals

Cole Fowlkes, who self‐identifies as male but was born biologically female, alleged in his complaint that his labor union and two of its business agents discriminated against him on the basis of sex and retaliated against him for filing an earlier action against them.   The District Court held that Fowlkes’ failure to exhaust administrative remedies deprived the District Court of subject matter jurisdiction over his Title VII claims. The District Court thus also dismissed Fowlkes’ state‐ and city‐law claims for lack of jurisdiction.


The Second Circuit held that the administrative exhaustion requirement of Title VII is not jurisdictional but rather a precondition to suit and is subject to equitable defenses. In this case, at least two equitable defenses were raised on appeal: (1) whether the EEOC filing would be “futile” and (2) whether the claim was “reasonably related” to a prior EEOC claim Fowlkes had made on similar grounds. 


The Court vacated the District Court’s judgment dismissing Fowlkes’ federal claims for lack of jurisdiction and remanded the case to the District Court to determine whether any equitable defenses excuse Fowlkes’ failure to exhaust his administrative remedies. The District Court was also directed to entertain Fowlkes’ claim under the National Labor Relations Act, 29 U.S.C § 151, et seq., for breach of the duty of fair representation.  The decision can be found at


In fairness to the District Court, because the plaintiff appeared pro se, the District Court was deprived of the assistance of counsel where the equitable defenses and the fair representation claim may have been raised, forcing the District Court into the difficult role of divining that on its own.


As the Second Circuit pointed out, whether an EEOC filing was a “precondition” rather than a jurisdictional requirement has not always been clearly articulated.  Whether this ruling now excuses such filings in a broader context remains to be seen.