The U.S. Supreme Court ruled recently that Title VII’s administrative exhaustion requirement – whereby an employee must file a claim with the EEOC prior to filing a lawsuit – is not a jurisdictional rule. This means that the employee’s failure to file a charge does not automatically mean the case cannot go to court. Instead, the employer must raise the “failure to file” issue as an affirmative defense and do so in a timely fashion. The case is Fort Bend County v. Davis.


Lois Davis filed a charge against her employer, Fort Bend County, with the Texas Workforce Commission (Texas’ EEOC equivalent) claiming sexual harassment and retaliation. While that charge was pending, Davis was terminated. She claimed it was  for failing to report to work due to a church commitment. After her termination, Davis attempted to raise the issue of religious discrimination in the ongoing Texas Workforce Commission investigation, but she did not add it to the actual charge. Shortly thereafter, she filed a lawsuit in federal district court alleging sexual harassment, retaliation, and religious discrimination under Title VII.

After five years of litigation, only the religious discrimination claim remained in federal district court. The employer moved to dismiss the claim, arguing that Davis’s failure to file a religious discrimination charge should bar her from bringing a lawsuit on that basis. Ultimately, the Fifth Circuit Court of Appeals disagreed and ruled that the employer waived the defense by waiting too long to raise it. The court held that an employee’s failure to file a charge before bringing a lawsuit is not an automatic bar. The employer asked the Supreme Court to review the case.

Supreme Court’s Decision

Affirming the Fifth Circuit, the Supreme Court held that an employee’s obligation to file a charge before filing a Title VII lawsuit is a procedural obligation, not a jurisdictional requirement. This means that the “failure to exhaust administrative remedies” defense is not one that an employer can raise at any stage of a case; it must be timely raised. The practical implication of this decision is that that a federal court may retain jurisdiction over a Title VII discrimination claim even if an employee failed to allege the basis for the claim in his or her administrative charge.

The Court clarified, however, that an employee still risks having the lawsuit dismissed if he or she does not first file a charge with the EEOC or relevant state agency. Similarly, an employer risks defending against the claim if it does not timely assert that the employee failed to exhaust administrative remedies. In this case, the employer waited too long and waived the defense.

Bottom Line

Employers must not wait to raise a “failure to exhaust administrative remedies” defense in litigation. Employers that receive a Title VII lawsuit must promptly review the EEOC charge to determine whether any allegations in the complaint can be dismissed as a result of the plaintiff’s failure to raise the allegation with the EEOC beforehand. If the employee did not raise the allegations with the EEOC, the employer should either move to dismiss on that ground or, in the alternative, include this as an affirmative defense in its response to the complaint. An employer that fails to do so may waive the right to assert the defense in the future and the ability to obtain dismissal on that basis.