We would have thought that every lawyer who took Employment Law 101 in law school learned that:

(1) A plaintiff who files a lawsuit alleging violation of a federal employment law statute like Title VII, or its state law counterpart, must exhaust administrative remedies by filing a charge of discrimination with the EEOC or the state equal employment agency;

(2) Failure to do so can lead to dismissal of the claim; and

(3) It is incumbent upon defense counsel to point out a Plaintiff’s failure to exhaust.

But perhaps the third point was not so obvious. On June 3, 2019, the U.S. Supreme Court in Fort Bend County v. Davis, affirmed a Fifth Circuit ruling, and held that where a Plaintiff alleged sexual harassment and retaliation in her EEOC charge, but did not properly include a claim for religious discrimination, the religious discrimination claim could still go forward, because the defendant has not raised her failure to include this in her charge as a defense, and rather waited until years into the litigation to first bring up the issue.

In a unanimous decision by Justice Ginsburg, the Court ruled that Title VII’s charge-filing precondition to suit is not a “jurisdictional” requirement that can be raised at any stage of a proceeding; rather, is it a procedural prescription that is mandatory and can lead to dismissal if timely raised, but subject to forfeiture if tardily asserted. In other words, it is a claim-processing rule that a plaintiff is required to follow, but whose breach must be properly asserted by a defendant.

Practice tip for defense counsel: Don’t be stupid. When a court case is filed, compare the charge of discrimination and the Complaint with the utmost care. If the Complaint alleges claims or conduct that were not within the scope of the charge, raise the defense that the plaintiff has failed to exhaust administrative remedies as to those claims.