The Rocky Mountain Employer


Labor & Employment Law Updates

Employers in Colorado and Other Western States Must Litigate Untimely Discrimination Claims Under Recent Decision

    Under a recent appellate decision, employers in Colorado and several other Western statesFN1 must litigate clearly untimely discrimination lawsuits, which in the past were summarily dismissed by federal courts for lack of jurisdiction.

    Federal anti-discrimination statutes—including the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”)—require claimants to file a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of discriminatory acts in order to maintain a claim.FN2 For almost forty years, the Tenth Circuit Court of appeals “steadfastly held that exhaustion of administrative remedies is a ‘jurisdictional prerequisite’” to filing a claim in federal court,FN3 meaning courts in the Tenth Circuit could not exert jurisdiction over discrimination claims in which the plaintiff did not timely file an EEOC Charge (or did not file an EEOC Charge at all). In Lincoln v. BNSF Ry. Co., the Tenth Circuit Court of Appeals reversed course and held that filing an EEOC Charge is not a jurisdictional prerequisite to filing a lawsuit in federal court but still may be an affirmative defense to a lawsuit.FN4

Practical Takeaway

    In light of the Court’s ruling, we expect the overall cost of litigating employment discrimination claims in the Tenth Circuit will increase, as employers will need to litigate untimely cases—both in the administrative stage before the EEOC and in court—that previously would have been automatically barred for lack of jurisdiction.

    In most cases, a plaintiff’s failure to timely file an EEOC Charge should still be an effective defense. However, plaintiffs may now attempt to argue that the Charge requirement should be waived or tolled based on equitable considerations, such as alleged misconduct by employers. To minimize the effectiveness of such arguments, employers should consider re-training management and human resources on non-discrimination and reporting practices on how to correctly respond to and manage internal discrimination complaints.


FN1:   See Lincoln v. BNSF Ry. Co., 17-3120, 2018 WL 3945875 (10th Cir. Aug. 17, 2018) The Tenth Circuit Court of Appeals, which has jurisdiction over federal appeals originating from Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, issued the decision.

FN2:   See 42 U.S.C. § 2000e-5(e)(1). A shorter, 180-day filing period applies in states where there is no state agency that enforces non-discrimination laws.

FN3:   Lincoln, 2018 WL 3945875, at *5; see also Kathleen Kapusta, J.D., Overturning precedent, 10th Circuit concludes that filing an EEOC charge is not a jurisdictional prerequisite to suit, Wolters Kluwer, Employment Law Daily,

FN4:   The court in Lincoln reasoned, in part, that many other appellate courts had already rid themselves of the jurisdictional requirement that a plaintiff file an EEOC claim and exhaust administrative remedies before filing a lawsuit. Lincoln, 2018 WL 3945878, at *8 n.10. The Tenth Circuit joins the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuit Courts of Appeal. Id.; see also Benjamin Hase, Esq., 10th Circuit: Failure to File EEOC Claim No Bar to Lawsuit, Employers Counsel (August 20, 2018),