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Must an Employee File an EEOC Discrimination Charge Before a Lawsuit?

By Lisa Nagele-Piazza, J.D., SHRM-SCP

04/26/2019

The U.S. Supreme Court will soon decide whether an employee who brings a discrimination claim must always exhaust the administrative remedies available through the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit or if the employee can go straight to court if the employer doesn't object.

The plaintiff in this case sued her employer for religious discrimination under Title VII of the Civil Rights Act of 1964. Federal law generally requires employees to go through the EEOC's administrative complaint process before filing a lawsuit, but the plaintiff took her claim straight to court. After five years of court proceedings, her employer, Fort Bend County, Texas, noted that her lawsuit should be dismissed because she failed to first file a charge with the EEOC.

The central issue in the case is whether the EEOC's administrative complaint process is a jurisdictional requirement, which would bar the lawsuit altogether, or a mandatory claim-processing rule, which the employer could choose to waive. 

"Put another way, if the filing of an EEOC charge is a jurisdictional requirement to filing a Title VII lawsuit, there can be no excuse for not complying," explained David Morrison, an attorney with Goldberg Kohn in Chicago. Such rules promote an efficient court system and judicial process and provide certainty to employers that when plaintiffs fail to exhaust administrative remedies, they also lose their right to litigate those claims in court.

When the condition is waivable, on the other hand, the courts can evaluate whether there are circumstances when noncompliance may be excusable, Morrison noted. However, this would require the employer to vigilantly assert defenses to federal litigation to ensure that it does not waive the right to challenge the plaintiff's failure to exhaust administrative remedies, he said. 

Federal courts have disagreed on whether the EEOC's complaint process is waivable. "The ruling will not only resolve a circuit split, but it will also provide guidance to the employment bar about filing and when to assert a failure to do so," said Randi May, an attorney with Hoguet Newman Regal & Kenney in New York City. 

Oral Arguments

At the oral argument before the Supreme Court on April 22, the employer's counsel focused mainly on the textual interpretation of the statute. "When Title VII's exhaustion requirement is satisfied, the power to address an employment-discrimination claim shifts from the executive to the judicial branch," said Colleen Roh Sinzdak, an attorney with Hogan Lovells in Washington, D.C., who argued on behalf of Fort Bend County. "The exhaustion requirement is, therefore, jurisdictional in the plainest sense of that word."

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