On June 3, 2019, the United States Supreme Court decided Fort Bend County, Texas v. Davis, adopting a “use it or lose it” rule when it comes to certain employer objections to discrimination claims. Davis held that if an employee sues an employer without first filing a charge with the Equal Employment Opportunity Commission (the “EEOC”), the employer must timely object or the employer’s defense is waived. This post discusses the background of that case, and what it means for employees and employers.

Why does this case matter?

In legal terms, Davis ruled that the charge-filing requirement of Title VII is a procedural requirement. Title VII is the federal law that protects an employee against employment discrimination on the basis of race, color, religion, sex, or national origin. The “charge-filing requirement” of Title VII requires employees to file a charge of discrimination with the EEOC before they can file a lawsuit against their employer in federal court. If the employer objects that the employee did not properly file a charge with the EEOC first, then the employee’s case can be dismissed.

But prior to Davis, the federal circuits were split on the question of when an employer had to raise an objection to the charge-filing requirement. Could it be at any time in the case, or did they have to object early on?

By holding that the charge-filing requirement is procedural rather than jurisdictional, the Supreme Court resolved the circuit split by holding that an objection must be raised early in the case or the defense is waived and the case can proceed, even if an employee did not properly file a charge with the EEOC.


Lois Davis informed her employer’s HR department that the director of IT for her company was sexually harassing her. The IT director resigned as a result of an investigation into the sexual harassments claims, but Ms. Davis’s manager began to retaliate against her for reporting the harassment. The manager told Ms. Davis that she needed to come into work on Sunday, but Ms. Davis told the manager that she had a commitment at church that Sunday and refused. The manager then fired her.

Ms. Davis filed a charge of discrimination with the EEOC without the assistance of an attorney. Her EEOC charge alleged sexual harassment and retaliation. Ms. Davis handwrote “religion” on part of her EEOC intake questionnaire, but her formal EEOC charging documents were never amended to include an allegation of religious discrimination.

Ms. Davis received a “right to sue” letter from the EEOC and filed her case in federal district court, claiming retaliation and religious discrimination. The district court granted summary judgment for the employer, effectively rejecting Ms. Davis’s claims. Ms. Davis appealed and the Fifth Circuit Court of Appeals upheld the district court’s ruling as to the retaliation claim but reversed as to the religious discrimination claim.

When the case returned to the district court, the employer for the first time moved to dismiss the religious discrimination claim because it was never part of the formal EEOC charging document, and therefore violated the “charge-filing requirement.”

The Supreme Court’s Ruling:

The Supreme Court noted that some statutory requirements are “jurisdictional” while others are “procedural.” Jurisdictional arguments can be raised by the parties to a lawsuit at any time, and the court must dismiss the case if a jurisdictional requirement has not been satisfied. Procedural requirements, on the other hand, must be raised within a certain period of time, or else the party waives the right to raise the argument—even if the party may have been right. The Court held that the “charge-filing requirement” was procedural. Therefore, because the employer waited so long to object, Ms. Davis could proceed with her religious discrimination claim even though she did not properly file the charge with the EEOC.

What does this mean for employees?

This is a small victory for employees in very limited circumstances. If an employee fails to properly file a charge of discrimination with the EEOC and then files a federal lawsuit, the employee’s lawsuit will be allowed to proceed if the employer does not timely object.
However, all it takes to sink the employee’s case is for the employer to carefully review the lawsuit and the EEOC charges and object early in the case that the employee as violated the charge-filing requirement. The employee’s case may then be dismissed.
To avoid this danger, an employee must carefully review the charge of discrimination filed with the EEOC to make sure that it includes all viable claims under Title VII. Ms. Davis may have thought she did this when she wrote “religion” on her intake questionnaire, but that was not legally sufficient.
It is usually a good idea to have an experienced employment law attorney review a charge with filed with the EEOC to make sure that it has been properly filed and includes all claims. Otherwise, the employee may lose the ability to sue his or her employer down the road.

What does this mean for employers?

Employers must carefully compare the charge of discrimination against the complaint they receive from the employee to determine whether the employee is suing for a claim that was never properly filed with the EEOC. If so, the employer must timely object or that objection will be waived. Hiring a careful attorney to spot this issue could mean the difference between a quick dismissal of the employee’s case and a prolonged legal battle that the employer may lose.

By Stewart Salwin