In a closely-watched case, the Supreme Court unanimously held today that an employer who does not timely raise an employee’s failure to comply with the EEOC’s exhaustion requirements can be held to have waived its right to raise that defense, because the exhaustion requirement is not a jurisdictional prerequisite.

In Fort Bend County v. Davis, Fort Bend County waited five years to argue that Lois Davis did not properly pursue her religious-discrimination claim with the EEOC. (During this time, the district court granted Fort Bend County’s motion for summary judgment, but the Fifth Circuit reversed in part, and the Supreme Court denied certiorari). The district court nevertheless held that, because exhaustion is a jurisdictional requirement, the delay did not matter. On the merits, the court held that Davis’s failure to properly raise her religious-discrimination claim with the EEOC barred its later consideration by the court.

A divided Fifth Circuit reversed. The majority held that Title VII’s administrative exhaustion requirement is not a jurisdictional bar to suit. Because Fort Bend County had not raised its exhaustion defense until the case was remanded to the district court, the Fifth Circuit found it “abundantly clear” that it “forfeited its opportunity to assert this claim.”

In its petition for certiorari, Fort Bend County noted three Circuits—the

Fourth, Ninth, and Eleventh Circuits—hold that Title VII’s administrative exhaustion requirement is jurisdictional, while eight Circuits hold that administrative exhaustion is not a jurisdictional prerequisite to suit under Title VII.

In today’s decision, the Supreme Court sided with the majority of the Circuits, unanimously holding that “Title VII’s charge-filing instruction is not jurisdictional” but is, instead, “among the array of claim-processing rules that must be timely raised to come into play.”

The decision is a reminder of the need for employers, and their counsel, to scour a complaint at inception of suit, and to immediately raise any exhaustion defects. Indeed, during oral argument, Justice Kavanaugh suggested that “so long as defendants raise the argument,” holding the exhaustion requirement is a claim-process rule would have little effect on employers, while also saving judges from the obligation “to look through the record to make sure each claim was specifically exhausted.” At the end, that is the takeaway from Fort Bend: employers and their counsel need to raise a failure-to-exhaust argument upon receipt of the complaint. Otherwise, they might learn that “he who hesitates is lost.”