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Supreme Court Holds Employers May be Required to Litigate Non-Exhausted Discrimination Claims

The U.S. Supreme Court ruled unanimously that federal courts have the power to review discrimination and retaliation claims brought under Title VII of the 1964 Civil Rights Act (“Title VII”) even if the plaintiff did not first file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") or an equivalent state agency.FN1

Before seeking relief in the courts, Title VII requires plaintiffs to file a charge of discrimination within 180 days of the alleged discrimination, or 300 days where state agencies also enforce anti-discrimination laws.FN2 With the Supreme Court’s ruling this week, employers may raise an affirmative defense about a claimant’s failure to file an EEOC charge, but the employee’s claim is not automatically foreclosed by failure to timely file a charge, as it was previously in many parts of the country.FN3

The Supreme Court's decision on this issue has significant practical implications for employers, requiring employers to be more vigilant in asserting a defense tied to an employee’s failure to file the appropriate charge. Although filing a charge with the EEOC or an equivalent state agency is still a mandatory requirement before filing suit, an employer’s failure to object timely to an employee’s failure to file a charge may result in a waiver of this argument. 

Footnotes:

FN1: Fort Bend County v. Davis, 587 U.S. ___ (2019).

FN2: Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. The exhaustion requirement is found at 42 U.S.C. § 2000e-5(e)(1). See also https://www.eeoc.gov/employees/timeliness.cfm

FN3: https://www.rockymountainemployersblog.com/blog/2019/1/18/supreme-court-expected-to-provide-clarity-on-exhaustion-of-remedies-requirement; https://www.rockymountainemployersblog.com/blog/2018/9/6/employers-in-colorado-and-other-western-states-must-litigate-untimely-discrimination-claims-under-recent-decision.