10th Cir. OKs employment suits without EEOC charge

Dive Brief:

Filing a charge with the U.S. Equal Employment Opportunity Commission (EEOC) is not a jurisdictional prerequisite to suit, the 10th U.S. Circuit Court of Appeals held Aug. 17, overturning almost 40 years of precedent (Lincoln v. BNSF Railway Company, No. 17-3120).
The ruling came in an Americans with Disabilities Act lawsuit filed against BNSF Railway Company. A lower court previously refused to consider the allegations, accepting the employer's argument that the claims were barred because the employee failed to timely file a charge with EEOC before heading to court.
On appeal, the 10th Circuit three-judge panel said that, after polling the full court, such a failure only is available to employers as an affirmative defense.

Dive Insight:

Employees generally must file a charge with EEOC before filing a Title VII lawsuit. EEOC can then attempt to conciliate and/or litigate the claim, or give complainants a "right-to-sue" letter.

This requirement "is intended to protect employers by giving them notice of the discrimination claims being brought against them, in addition to providing the EEOC with an opportunity to conciliate the claims," the 10th Circuit explained, citing its own precedent.

However, most of the federal appellate courts have determined that an employee's failure to do so doesn't bar a federal court from assuming jurisdiction altogether, the Lincoln court said. Instead, employers must raise that failure as an affirmative defense — "a defense subject to waiver, estoppel, and equitable tolling."

And in this case, that could be a problem for BNSF because it, at one point, appears to have agreed that the plaintiffs exhausted their administrative remedies. The 10th Circuit sent the case back to the lower court to decide whether to hold that statement against the employer, a conclusion that would mean it waived its failure-to-exhaust defense.