I’m a wizard, apparently, plus four other employment law takeaways from yesterday’s SCOTUS decision.


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Damn, I’m good!

Yesterday morning, my post, “Eminem’s take on federal anti-discrimination administrative exhaustion requirements. Probably” went live.

Now, scroll down to the “Takeaways For Employers” section.

You’ll see some discussion there about how the Supreme Court needed to resolve an open issue in the Circuit Courts; namely, whether a defendant-employer might waive the defense that a plaintiff-employee failed to exhaust administrative remedies if the employer failed to raise that defense promptly in a civil lawsuit.

And just like that, within hours after my post went up, the Supreme Court decided the issue.

Eric, what’s this “exhaust administrative remedies” mumbo jumbo of which you speak?

It’s like this.

Yesterday, I told you that a plaintiff asserting claims under the Americans with Disabilities Act must present them first to the U.S. Equal Employment Opportunity Commission before filing a federal lawsuit. The same holds under Title VII of the Civil Rights Act of 1964. It’s called exhausting your administrative remedies.

The EEOC receives a Charge of Discrimination. But the EEOC has no authority itself to adjudicate discrimination complaints. If the EEOC chooses not to sue, and whether or not the EEOC otherwise acts on the charge, a complainant/plaintiff is entitled to a “right-to-sue” notice 180 days after the charge is filed. On receipt of the right-to-sue notice, the complainant/plaintiff may commence a civil action against her employer. Voila! The complainant/plaintiff has exhausted his or her administrative remedies on whatever claims were before the EEOC.

In yesterday’s Supreme Court opinion, the plaintiff filed a Charge of Discrimination with the EEOC against her employer alleging sex discrimination and retaliation. Later, she claimed that her employer discriminated against her based on her religion. But, she never amended her Charge. Consequently, the employer could raise as a defense in the subsequent lawsuit that the plaintiff failed to exhaust her administrative remedies on the religion claim.

Except, here’s the thing. The employer waited years after the litigation commenced to raise this defense.

You snooze, you lose.

So the question for the Supreme Court to answer was whether an employer can raise failure to exhaust at any time, or is it something that an employer must raise in a timely fashion or risk forfeiting the defense?

Yadda, yadda, yadda, — I’ll spare you the analysis — it’s the latter.

Five takeaways for employers.

  1. My timing is exquisite. Tell all of your friends to subscribe.
  2. An employer must raise “failure to exhaust administrative remedies” as an affirmative defense early or risk losing it later.
  3. Nothing about this decision excuses an individual from exhausting administrative remedies at the EEOC first before pursuing Title VII claims in federal court.
  4. But, your mileage may vary under some similar state laws. For example, in Pennsylvania, where I practice, an individual must file with the Pennsylvania Human Relations Commission before pursuing sex or religious discrimination claims against an employer in court. However, in New Jersey, where I also practice, an individual does not need to file an administrative complaint before going to court to assert claims arising under New Jersey’s Law Against Discrimination.
  5. Nine Supreme Court Justices can still agree on the outcome of an employment case. Yep, this one was unanimous. And for those keeping score yesterday, in another Supreme Court decision, Justice Ginsburg sided with Justices Thomas, Alito, Kavanaugh, and Roberts in a case where Justice Gorsuch joined Justices Sotomayor, Kagan, and Breyer. Go figure!
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