Filing of EEOC Charge Is Not a Jurisdictional Prerequisite in Most Federal Jurisdictions

Overturning nearly four decades of precedent, the U.S. Court of Appeals for the Tenth Circuit in Lincoln v. BNSF Railway Co. held that the filing of a charge of discrimination with the Equal Employment Opportunity Commission was not a jurisdictional prerequisite to filing an employment discrimination suit. Thus, the failure to file a charge does not prevent a court from assuming jurisdiction over the suit. The employee’s failure to file a charge, however, does constitute an affirmative defense for the employer. Such defense is subject to waiver, estoppel and equitable tolling.

Notably, most other jurisdictions have already come to that conclusion – all but the Fourth, Ninth and Tenth Circuits. Accordingly, in these Circuits, employers can still argue that the failure to file a claim and exhaust administrative prerequisites deprives the court of jurisdiction; in almost all other jurisdictions, however, it must be specifically pled as an affirmative defense and employers need to make sure that nothing is done to waive it.