The U.S. Supreme Court recently delivered an important decision limiting an employer’s ability to dismiss federal employment discrimination lawsuits under Title VII of the Civil Rights Act of 1964. In Fort Bend County v. Davis, the Court unanimously held that Title VII’s requirement that an employee file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) prior to commencing a federal discrimination lawsuit is a “claim-processing rule,” not a jurisdictional requirement. Thus, employers may only raise failure to file a charge as a defense early in the legal proceedings, not at the appeal stage. If it is not timely raised, then such defense may be forfeited.

In Fort Bend County, the plaintiff, Davis, submitted an intake questionnaire with the EEOC in February 2011 and subsequently filed a formal charge of discrimination in March 2011, alleging sexual harassment and retaliation. While her EEOC charge was pending, Davis was terminated for not reporting to work on a Sunday. Davis then amended her EEOC intake questionnaire to include “religion” as part of her discrimination claim but not her formal EEOC charge.

After the U.S. Court of Appeals allowed her religious discrimination claim to proceed, Fort Bend asserted, for the first time, that Davis’ religion claim should be dismissed, because she did not file a religious discrimination charge with the EEOC prior to filing her lawsuit. To address its tardiness in raising that defense, Fort Bend argued that the defense was “jurisdictional” and could, therefore, be asserted at any point in the litigation process. The U.S. Supreme Court ruled that filing an EEOC charge is a non-jurisdictional procedural step prior to litigation that may be mandatory “in the sense that a court must enforce the rule if timely raised.” But Fort Bend’s defense was not timely raised, and the religious discrimination claim could proceed.

Employers should take notice that a plaintiff’s failure to file a charge with the EEOC can still be an effective tool in dismissing a federal employment discrimination lawsuit. However, such defense may be forfeited if it is not timely raised before the court.

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