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U.S. Supreme Court Dismisses Employer’s “Administrative Exhaustion” Defense in Title VII Case

Employees who want to bring a discrimination claim against their employer under New Jersey law can file a lawsuit in court or file a complaint with a state agency. Federal law, on the other hand, requires employees to file a complaint with the Equal Employment Opportunity Commission (EEOC) before going to court. If a claimant does not complete the process with the EEOC before filing a lawsuit, the court can dismiss the suit for failure to exhaust administrative remedies. This is known as the “administrative exhaustion defense.” It is not, however, an unlimited defense for employers. The U.S. Supreme Court recently ruled in Fort Bend County v. Davis that a defendant in a federal employment discrimination lawsuit waived the defense by not raising it in a timely manner. If you are having a dispute with an employer, a discussion with a New Jersey employment attorney may help you better assess your situation.

The New Jersey Law Against Discrimination (NJLAD) gives aggrieved employees and job applicants two options. See N.J. Rev. Stat. § 10:5-13. They can file a complaint with the Division on Civil Rights (DCR), which is part of the New Jersey Office of the Attorney General. They can also file a lawsuit in New Jersey Superior Court. They cannot do both, so careful planning and preparation is key to any employment discrimination claim.

Title VII of the federal Civil Rights Act of 1964 requires complainants to file a charge with the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). The EEOC may attempt to reach a settlement with the employer, or it may file suit against the employer on behalf of the complainant. If 180 days have passed since the charge was filed and the EEOC has not resolved the dispute, the complainant can request a formal notice, commonly known as a “right to sue” letter. Id. at § 2000e-5(f)(1), 29 C.F.R. § 1601.28. This gives the complainant ninety days to file a lawsuit in U.S. District Court. Without a right-to-sue letter, the employer can raise the administrative exhaustion defense.

The plaintiff in Davis filed a charge with the EEOC in early 2011. She alleged sexual harassment and retaliation. One supervisor allegedly harassed her, and resigned after an internal investigation. Her next supervisor allegedly retaliated against her for reporting the harassment.

While the EEOC process was underway, the plaintiff’s employer fired her. The stated reason was that she skipped work on a Sunday. She claimed that her supervisor—the one accused of retaliation—refused to make an accommodation for her to attend a church function. After her termination, she added the word “religion” to the EEOC paperwork by hand. The EEOC issued a right-to-sue letter a few months later. She filed suit in January 2012 for retaliation and religious discrimination.

After several years of litigation, including an unsuccessful petition to the Supreme Court, the religious discrimination claim was the only cause of action left. The defendant raised administrative exhaustion for the first time, claiming that the right-to-sue letter only covered the retaliation claim. It argued that the requirement of a right-to-sue letter is “jurisdictional,” meaning that the court cannot hear the case without it. The court disagreed, finding that the defendant waived the administrative exhaustion defense by not raising it until their second trip to the Supreme Court.

The Resnick Law Group’s skilled and experienced employment attorneys are available to assist you in your religious discrimination or retaliation dispute with an employer in New Jersey or New York. To schedule a confidential consultation to discuss your rights and options, please contact us today at 973-781-1204, at 646-867-7997, or through our website.

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