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No EEOC Charge? A Lawsuit is Still Possible

The Tenth Circuit Court of Appeals has held that filing an Equal Employment Opportunity Commission (EEOC) Charge of Discrimination is not an essential prerequisite to filing a lawsuit, overturning nearly 40 years of circuit precedent.
Larry Lincoln and Brad Mosbrucker sued BNSF Railway Company after work-related injuries precluded them from resuming their jobs and the Railway did not hire them for other positions. The men had submitted 20 applications for new jobs between 2010 and 2014. In 2013, they filed Charges of Discrimination with the EEOC, with Mr. Mosbrucker filing a second charge in 2015. The EEOC issued “Right to Sue” letters to the men in 2015. They brought suit alleging violations of the Americans with Disabilities Act. BNSF Railway asked the courts to dismiss the claims because the men did not file Charges for each discrete act of purported discrimination as required under the law.
In reaching its decision to the contrary, the appellate court addressed the 10th Circuit’s precedent holding courts lack jurisdiction over separate incidents that occur after a Charge of Discrimination is filed. However, the court concluded that the precedent was incorrect. While Title VII mandates that plaintiffs file an EEOC charge, “nothing in [that] provision discusses a court’s authority to hear a case.” Thus, the court held:

“a plaintiff’s failure to file an EEOC charge regarding a discrete employment incident merely permits the employer to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim.”

The case was remanded to the lower court in order to determine whether BNSF had previously waived its right to raise the failure to exhaust administrative remedies as an affirmative defense.