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Waiving Goodbye to a Great Defense: Don’t Do It
June 26, 2019
Parsons Behle & Latimer Legal Briefings

You have just been sued for sexual harassment and religious discrimination. “Religious discrimination?” you think to yourself. You are puzzled because when you received a copy of the Charge of Discrimination from the Utah Anti-Discrimination and Labor Division (UALD) – it could also have been the Idaho Human Rights Commission or the Nevada Equal Rights Commission, but for now let’s assume the case is in Utah – there was nothing said about discrimination on the basis of religion. “That’s interesting,” you think to yourself, and you pick up the phone to call your lawyer. 

Your lawyer files an answer and the case proceeds through discovery. You win at the trial court, but the Court of Appeals reverses, and the case goes back to the trial court. The case has now been dragging on for years. Your lawyer calls you one day and says, “I have been going through some of the documents again, and I noticed that the plaintiff did not assert a claim for religious discrimination when she filed her Charge of Discrimination with the UALD. I think we have a great defense.” Your lawyer then files a motion to dismiss because the plaintiff never brought a Charge of Discrimination for religious discrimination at the UALD before filing a lawsuit. You win the motion to dismiss at the trial court but lose again at the Court of Appeals. You appeal to the Supreme Court of the United States and the Court takes your case. You lose again on some technical legal ground that you don’t really understand.

These are the basic facts in the case of Fort Bend County Texas v. Davis, recently decided by the United States Supreme Court. Under Title VII of the 1964 Civil Rights Act, a plaintiff must first file a Charge of Discrimination with the relevant state agency or the Equal Employment Opportunity Commission on a claim for discrimination or harassment (including religion) before filing a lawsuit in court. Just as in the hypothetical above, the plaintiff did not do that in Fort Bend. And just as in the hypothetical above, the employer in Fort Bend did not raise the issue until well into the litigation process. 

The Supreme Court recognized that filing a Charge of Discrimination with the relevant state agency or EEOC before filing a lawsuit in court is required under Title VII. But the Court found that the employer had waived the defense. At issue was whether the requirement to file a Charge of Discrimination before filing a lawsuit was a “jurisdictional” requirement or, in the words of the Court, a “nonjurisdictional claim-processing rule.” Sounds like legal mumbo jumbo, right? But the distinction is critical. If the requirement to file a Charge of Discrimination before filing a lawsuit was “jurisdictional,” then it could not be waived as a defense. The employer could raise the defense the day before trial, or even at trial. However, if the rule was not “jurisdictional,” but was merely a “claim processing rule,” then it could be waived. And that is what the Court found. The requirement that an employee file a Charge of Discrimination before filing a lawsuit was not jurisdictional but was a “claim-processing rule,” therefore, it could be waived. The employer’s delay in raising the defense until well into the litigation process constituted such a waiver.  

So, if you are sued for discrimination under Title VII (race, gender, pregnancy, religion), the Age Discrimination in Employment Act or the Americans with Disabilities Act, carefully review the Charge of Discrimination that an employee submitted prior to filing the lawsuit. If the lawsuit brings a discrimination claim under one of those statutes but the claim was not identified in the Charge of Discrimination, you may have a rock-solid defense. Unless, of course, you wait too long to raise it.

To discuss this or other employment-related matters, contact Sean Monson or Christina Jepson by calling 801.521.1234 or send an email to Sean at or Christina at