In Fort Bend County v. Davis, the U.S. Supreme Court ruled that the EEOC charge filing requirement under Title VII of the Civil Rights Act of 1964 is not a “jurisdictional” bar to litigation, but instead is a claim-processing rule subject to waiver if the defendant-employer fails to raise an affirmative defense at the appropriate point in the pleadings.

While Title VII requires individuals to file a charge with the EEOC (or the applicable state agency) and receive a right-to-sue letter before heading to federal court, the Court found that this is not a jurisdictional requirement to initiating a lawsuit. The result is that Federal Courts are not prohibited from hearing Title VII claims that did not begin at the EEOC. Rather, the pre-suit EEOC filing requirement is only a procedural requirement, a mandatory claim processing rule. This distinction is critical because procedural defenses, unlike jurisdictional defenses, must be raised early in the lawsuit – or they are waived. As such, Fort Bend tells us that Title VII claims filed in court, and not initially at EEOC, do not need to be outright dismissed on a jurisdictional basis anytime the court learns of the failure, even if late in the trial process. However, such cases may be dismissed at the early stages of the litigation if the defendant properly raises the procedural defense.

The major take-away from Fort Bend is that Employers looking to raise a failure to exhaust administrative remedies defense must do so timely, meaning almost always right at the start of the litigation, or risk waiving the defense. Employers should be sure to raise the defense of failure to file with the appropriate agency or failure to receive a right-to-sue letter whenever justified.