In recent months, EmployNews has reported on a series of federal appellate decisions dealing with administrative prerequisites for filing lawsuits claiming employment discrimination. Some courts have stated that an EEOC charge is required in order to file suit, resulting in a quick dismissal when the evidence shows that a timely charge was not filed. Other courts have taken a more relaxed view of this requirement, allowing suits to proceed with the administrative exhaustion argument serving as a defense for employers but not as a jurisdictional bar to the lawsuit in the first place. Last week, the U.S. Supreme Court heard oral arguments in a case that may set a national standard for charge filing requirements.

Why does this question matter to employers? Obviously, allowing the suit to proceed through discovery before a motion to dismiss is filed entails considerable cost. Also, if deemed a jurisdictional issue, employees who claim retaliation by the employer after the lawsuit begins could be forced to go back to the EEOC and amend their charge before adding the retaliation claim to the lawsuit. Finally, if considered non-jurisdictional, some employers may waive their ability to assert the administrative exhaustion defense if they wait too long in the litigation process.

The Supreme Court will decide whether some Title VII and related suits can proceed even if an EEOC charge is never filed. The court will need to discern congressional intent on whether the charge filing requirement was designed to be mandatory before a lawsuit can even be filed.