Before an employee can file a discrimination lawsuit against their employer, they must first exhaust all internal remedies the company offers. Then, the worker must file a complaint with the Equal Employment Opportunity Commission or a corresponding state agency such as the Maryland Commission on Civil Rights or the Virginia Division of Human Rights. This is meant to ensure the worker exhausts the available administrative remedies, as well.
What happens, however, if an employee skips the agency step and heads straight to court? If exhausting the procedural remedies is required before a court can take jurisdiction over the case, then failing to do so could result in the case being thrown out at any point in the proceedings. If it is not a jurisdictional issue, though, then the employer would need to object to the lawsuit on the grounds that the administrative remedies had not been exhausted. If they did not object, the lawsuit could move forward.
Supreme Court rules administrative exhaustion isn't jurisdictional
In a case recently heard by the U.S. Supreme Court, the worker did file a complaint with the EEOC. However, she later attempted to add religious discrimination to her sexual harassment and retaliation claim. Unfortunately, her attempt at adding the religious discrimination charge was ineffective because she merely hand-wrote "religion" on a new EEOC intake form rather than amending the original document.
When the time came for her to file a lawsuit against her former employer, she included the religious discrimination claim even though that had not been investigated by the EEOC. After several years of litigation, according to the Society for Human Resource Management, only the religious discrimination claim remained unresolved.
At that point, well into the litigation process, the employer tried to have the religion claim thrown out because the worker hadn't exhausted the EEOC's remedies. The Fifth Circuit held that the administrative exhaustion rule may be mandatory but it is not jurisdictional.
Earlier this month, the U.S. Supreme Court agreed. While the rule is mandatory, a worker's failure to follow it does not mean the courts would have no jurisdiction to hear the discrimination complaint. In other words, it is the responsibility of the employer to object if the rule is not followed.
This represents a significant change in how cases in the Fourth Circuit will be handled, as the Fourth Circuit has treated the administrative exhaustion rule as jurisdictional. Both Maryland and Virginia are in the Fourth Circuit.
Employers named in discrimination lawsuits will now need to consider the administrative history of the complaints and ensure that all the suit's claims were considered at the agency level.