According to the Supreme Court, the answer is no, but with a catch
On June 3, 2019 the U.S. Supreme Court held that an employee may proceed with a federal discrimination lawsuit even if they have not fired filed a charge of discrimination with EEOC. Under Title VII, an employee must pursue the EEOC’s administrative process before being allowed to sue their employer in federal court.
The issue presented to the Supreme Court was whether the requirement to “exhaust administrative remedies” is jurisdictional or merely procedural. The difference is as follows:
• Jurisdictional means that if the requirement is not met, a court lacks authority to hear the claims at all, or
• Procedural means that a party would need to raise failure to exhaust administrative remedies as an affirmative defense to liability.
In Fort Bend County v. Lois M. Davis, the County waited years after litigation began to seek dismissal of the employee’s Title VII claim of religious discrimination on the basis that she had not filed a valid charge of discrimination. The lower court determined that the requirement to exhaust administrative remedies was not jurisdictional and the County failed to timely raise the defense and therefore, refused to dismiss the claim. The Fifth Circuit Court of Appeals upheld the lower court’s decision and the Supreme Court agreed with both lower courts.
This Supreme Court ruling does not change or eliminate the requirement that employees participate in the EEOC administrative process before filing suit. But it does clarify that an employer must affirmatively assert such defense within a reasonable time after the start of the litigation.
This decision clarifies previous decisions of the First, Second, Third, Sixth, Seventh, Tenth, and D.C. Circuits Courts who had determined that the administrative remedies requirement was not jurisdictional whereas the Fourth, Ninth and Eleventh Circuits have held that an employee’s failure to exhaust administrative remedies barred the court from hearing the claim.