The general rule is that a federal discrimination claim should be dismissed unless a timely charge was filed with the Equal Employment Opportunity Commission (EEOC). Whether that statutory requirement was jurisdictional (and could not be waived) or procedural (and must be presented to the Court in a timely manner or the defense is waived) was subject to judicial disagreement. Until today’s Supreme Court’s ruling in Fort Bend Cty. v. Davis, eight federal appellate courts ruled that the failure to exhaust administrative remedies was a procedural matter that would not necessarily bar a discrimination claim under Title VII. Three other appellate courts, however, had ruled that pre-suit claim exhaustion was a jurisdictional prerequisite to a court filing.

In Davis, plaintiff handwrote “religion” on the EEOC Charge intake questionnaire, but did not include that claim on the formal charge document. In 2012, Davis commenced a civil action in federal court alleging discrimination based on religion and retaliation for reporting sexual harassment. The District Court partially granted Fort Bend’s motion for summary judgment based on Davis’s failure to amend her charge to contain a claim for discrimination based on religion. The Court of Appeals for the Fifth Circuit reversed.

It was not until years into the litigation that Fort Bend sought dismissal due to the lack of federal jurisdiction because claimant had not stated a timely claim for religious discrimination in the EEOC charge. Rejecting this contention, the Supreme Court ruled that Title VII’s charge-filing requirement is not jurisdictional; it is procedural. Therefore, even though Title VII requires that a plaintiff file an administrative charge before filing a lawsuit, a case will not be dismissed unless the employer raises that objection in its Answer or by motion early in the case. In effect, assert the defense or forfeit it.