Update on Discrimination and Retaliation Claims

Practice Areas

By: Rubeena Sachdev

On June 3, 2019, the Supreme Court ruled that for a Title VII claim relating to discrimination or retaliation, an employee must file a claim with the EEOC or a state agency prior to filing a lawsuit. The reasoning behind this ruling is procedural rather than jurisdictional. Employers must now initially assert a “failure to exhaust” defense, in order to seek dismissal of the claims filed in a lawsuit. Below is a summary of the two main points of the ruling.

  1. Jurisdictional or Procedural?
    • SCOTUS ruled that the Title VII administrative exhaustion requirement is a claim processing rule and not a jurisdictional bar to filing a lawsuit. Justice Ginsburg noted that when enacting Title VII, Congress did not expressly indicate any jurisdictional obligations. Therefore, if an employee does not allege the basis for a certain claim in their administrative action with either the EEOC or equivalent state agency, a federal court may still retain jurisdiction over that claim. However, an employee does risk their claim being dismissed if they do not file a charge with the EEOC or relevant state agency first. Per relevant law, employees must also file these claims with the EEOC or state agency within a certain time from any alleged unlawful employment practice.
  2. Failure to Exhaust Affirmative Defense
    • If a claim is not first filed with the EEOC or relevant stage agency, an employer waives the right to defend against a claim if it does not assert the failure to exhaust affirmative defense and move to dismiss on these grounds.

Employers must carefully review any complaint asserting a Title VII claim and scrutinize any EEOC or state agency claims filed before a lawsuit. It is essential to determine whether the claims filed and investigated by the agency are the same in scope to the complaint filed with a court. Consequently, if the employee has not first filed with the EEOC or state equivalent and if the claims are not within the scope of the agency investigation, then the employer should move to dismiss for failure to exhaust or at least assert this as an affirmative defense.

For additional information, please contact Rubeena Sachdev, attorney at law, at (408) 343-7610.