QUESTION:  My employer discriminated against me because of my sex – he treated me and other women differently than men – and I filed a lawsuit against him. It’s been going on for almost a year. Last week, my former employer argued that my case should be dismissed because I did not file a charge with the EEOC. I did file a charge, but originally, I thought my employer had discriminated against me because of my race, so that’s what I put in the charge. My lawyer says my case can be dismissed because I never changed the charge. If this is so important, why didn’t my lawyer bring this up earlier? What should I do?

ANSWER: To bring a claim for aviolation of your civil rights under Title VII of the Civil Rights Act, you must first file a charge with the Equal Employment Opportunity Commission (EEOC). While you can file a charge on several different grounds with the EEOC, at least one of those theories has to match your argument in the lawsuit you bring after the EEOC has taken your case or issued a Right to Sue letter.

If the basis of your charge with the EEOC and the argument in the complaint filed to begin your lawsuit don’t line up, your lawsuit can be dismissed. Without knowing more about your case, or when you hired your attorney, etc., we can’t second-guess why he or she did not address the alleged defect.

But, thanks to a recent decision by the U. S. Supreme Court, you may still be able to proceed with your case. In Fort Bend County, Texas vDavis, 587 US ___ (2019), decided June 3, the Court ruled that filing a discrimination charge with the EEOC is not a “jurisdictional requirement,” but a “mandatory claim-processing rule,” which should be enforced only if it is “timely raised.” If a party waits too long to object to a failure to follow a claim-processing rule, the court said, the objection may be forfeited.

In that case, the fired employee had never amended her EEOC charge to add a count of religious discrimination (her original charge alleged sexual harassment and retaliation). After years of litigation, only her claim of religious discrimination remained. The employer there – like your former employer – asked the Court to dismiss the lawsuit, claiming it was invalid from the get-go because there was no EEOC charge to support the legal claim.

Unfortunately for the employer, it waited for years — until after the case had been through several rounds of appeals – before bringing up the plaintiff’s failure to file an EEOC charge on the issue litigated. Because the lack of an EEOC charge was not a jurisdictional problem that went to the right of a court to hear a case, the employer’s delay in raising the issue meant the defect was waived. Writing for the Court’s majority, Justice Ruth Bader Ginsberg said the Court’s decision would not give employees an incentive to deliberately skip filing a charge with the EEOC. “Defendants, after all, have a good reason to promptly to raise an objection that may rid them of the lawsuit filed against them,” she wrote. “A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.”

Bottom line: Your case may survive and employers should be on notice that they must raise a plaintiff’s failure to file a charge with the EEOC as soon as possible, or lose it as a defense to a lawsuit.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law

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