Plaintiffs who want to file lawsuits alleging discrimination under federal civil rights laws such as Title VII must first file an administrative charge with the Equal Employment Opportunity Commission before proceeding to court. Earlier this month, however, the Tenth Circuit Court of Appeals reversed its own precedent, allowing a discrimination suit to survive a motion to dismiss despite evidence that a proper EEOC charge was never filed.

In Lincoln v. BNSF Railway Co., two employees filed suit under the ADA, alleging failure to accommodate their disabilities. Both plaintiffs filed EEOC charges, but those charges did not appear to address older and subsequent events that formed the basis of their lawsuit. The defendant moved to dismiss the claim, noting lack of federal court jurisdiction given the plaintiffs’ failure to exhaust their administrative remedies. The district court dismissed the suit, but the Tenth Circuit reversed this decision, remanding the case for additional proceedings.

In its decision, the Tenth Circuit panel confirmed that the ADA requires that plaintiffs file an EEOC charge as a prerequisite for filing suit. However, the court held that this failure does not deprive federal courts of jurisdiction over the claim. It only acts as an affirmative defense that can be raised by the defendant later in litigation. The Tenth Circuit panel overturned a 40-year old precedent, relying on a 1982 U.S. Supreme Court decision as the basis for its claim of jurisdiction. It rejected the defendant’s position that that case only dealt with the timeliness of the EEOC charge filing.

Federal courts have taken varying positions on this issue. Although this decision does not excuse the plaintiffs for failing to file timely EEOC charges, it means that this issue cannot be considered by the court until after discovery. This may result in increased costs to employers faced with federal discrimination claims without EEOC charges. It may also give the plaintiffs an opportunity to try to identify legal arguments as to why they met the administrative filing requirement.