The U.S. Supreme Court ruled unanimously on June 3, 2019, that federal courts may hear plaintiffs' claims of discrimination brought under Title VII, even if those claims were not first adjudicated by the U.S. Equal Employment Opportunity Commission (EEOC) or state agency equivalent. The Court's decision in Fort Bend County, Texas v. Davis, heard on appeal from the U.S. Court of Appeals for the Fifth Circuit, breaks with well-established employment law precedent, which requires plaintiffs to exhaust their administrative remedies by 1) filing a charge with the EEOC and/or state agency equivalent, and 2) obtaining a "Right to Sue" letter from the agency before filing suit in federal court.

The majority opinion, written by Justice Ruth Bader Ginsburg, notes that "Title VII's charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction)." As such, federal courts are not required to dismiss Title VII claims where the plaintiff has not exhausted administrative remedies on the basis of lack of jurisdiction.

Notably, employers may still use lack of exhaustion of administrative remedies as a defense – although an employer who does not bring such a defense in a timely manner waives it. Justice Ginsburg noted: "Defendants, after all, have good reason to promptly raise an objection that may rid them of the lawsuit filed against them."

When faced with a Title VII claim that has not yet been exhausted before an agency, employers should be sure to quickly address the lack of exhausted administrative remedies in an answer or a dispositive motion. Otherwise, the employer risks waiving an important potential defense to a Title VII claim.