On Monday, the United States Supreme Court (“SCOTUS”) made it more difficult for employers to dismiss federal discrimination lawsuits, ruling that if an employer does not timely raise the affirmative defense that an employee failed to properly file a charge, the employer waives that defense and the discrimination lawsuit can proceed in federal court.

Prior to an employee filing a federal Title VII action for discrimination in employment on the basis of race, color, religion, sex, or national origin, the complainant alleging the discrimination must “exhaust their administrative remedies” by filing a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”). The EEOC is the federal equivalent of California’s Department of Fair Employment and Housing (“DFEH”) who investigates and may elect to engage in informal resolution or bring a civil action against the employer in civil court. If the EEOC chooses not to sue, the complainant is then entitled to a “right to sue” notice within 180 days after the charge is filed. On receipt of the “right to sue” notice the complainant may file their own civil action against their employer.

In Fort Bend County, Texas v. Davis, employee Lois M. Davis (“Davis”) filed a charge in March 2011 with the EEOC against her employer, Fort Bend County, Texas (“Fort Bend”) alleging sexual harassment and retaliation for reporting the harassment. While the EEOC charge was pending, Davis alleges that she informed her supervisor of a specific Sunday she could not work due to a “previous religious commitment,” and the supervisor did not approve the absence. Davis did not report to work that Sunday and Fort Bend terminated her employment. As a result of her termination, Davis attempted to supplement her EEOC charge by handwriting “religion” on a form called an “intake questionnaire” but did not amend the formal charge. Davis subsequently received her “right to sue” notice and filed a lawsuit in Federal District Court, alleging discrimination based on religion and retaliation for reporting sexual harassment under Title VII.

After several years of litigation, only the religious-based discrimination claim remained in the case. Fort Bend then argued for the first time that the district court lacked jurisdiction because Davis did not exhaust her administrative remedies by failing to amend the formal charge, as required by Title VII. The district court agreed and granted Fort Bend’s Motion to Dismiss.

Davis appealed the district court’s decision and the U.S. Court of Appeals for the Fifth Circuit ruled it did not matter that Davis did not amend her formal charge because Title VII’s charge filing requirement is not jurisdictional and Fort Bend raised this defense far too late in the litigation. Fort Bend appealed the Fifth Circuit decision arguing that exhaustion is a jurisdictional requirement and their delay to raise the defense did not matter.

SCOTUS ultimately sided with the Fifth Circuit, unanimously holding that the requirement to file charges with the EEOC or similar state agencies is not a jurisdictional issue and rather is a “claims-processing” rule—requiring parties to take certain procedural steps in a timely manner.  This means that an employer can lose the right to get a discrimination lawsuit thrown out of court if the employer does not timely raise that the worker failed to exhaust the required administrative remedies. Here, Fort Bend waited nearly five years before raising this defense and SCOTUS ultimately ruled that rather than this claim being thrown out for procedural deficiencies, Fort Bend should have raised the defense earlier resulting in the religious based claim to move forward.


When a worker files a discrimination lawsuit, it is vital that employers immediately raise all potential defenses including reviewing whether the worker has exhausted their administrative remedies. If an employer waits too long to raise the exhaustion defense, the employer will lose the defense and the claim may move forward. Should your company receive an EEOC and/or DFEH charge from a current or former employee, please contact the experts at The Saqui Law Group, a Division of Dowling Aaron Incorporated to ensure that all defenses are raised in a timely manner and your company does not lose any advantages.

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