Filing an EEOC charge is not jurisdictional

40 years of precedent – gone.

The 10th Circuit has held that an employee's failure to file an EEOC charge is not a jurisdictional barrier to filing a discrimination suit. Instead, it merely permits the employer to raise an affirmative defense of failure to exhaust. Lincoln v. BNSF Railway Company (10th Cir 08/17/2018) [PDF].

After becoming partially permanently disabled (and unable to work outdoors), two employees each applied for more than 20 jobs and were rejected. The employees sued claiming violation of the Americans with Disabilities Act (ADA) – discrimination, failure to accommodate, and retaliation. The trial court dismissed several claims for lack of jurisdiction on the ground that filing an EEOC charge was a jurisdictional prerequisite to suit. The trial court granted summary judgment for the employer on the other claims.

The 10th Circuit analyzed cases dealing with both timeliness and total failure to file an EEOC charge under Title VII and the ADA. Then the three-judge panel checked in with all active judges in the Circuit and got their concurrence. Then they overruled their prior cases.

The court remanded for the trial court to determine whether the employer had waived its affirmative defense.

On the merits of several claims the court held that the employees were not qualified for the jobs they applied for or that other employees were more qualified, and that the employees did not show that the employer's proffered reasons were pretextual. As for a small number of claims as to which there were triable issues of fact, the court remanded for reconsideration.