No Need to Get Exhausted? 2d Circuit Opens a Door to No Charge EEO Litigation

Here's an interesting case from the federal Court of Appeals in New York concerning the requirements for exhaustion of administrative process before a lawsuit can proceed under Title VII. Plaintiff, an iron worker, alleged sex discrimination against his union based on his transgender status, along with several other federal complaints. His original charge was filed in 2007.  That claim was ultimately dismissed when plaintiff failed to file his lawsuit in less than than 90 days after the EEOC gave him a right to sue letter.

Plaintiff then filed a second lawsuit in 2011, alleging similar discriminatory claims. The district court kicked this lawsuit because plaintiff fail to file an administrative charge with the EEOC for any conduct occurring after the date of the 2007 charge.

This dismissal should not be a surprise to anyone - Title VII requires a plaintiff to file an administrative charge of discrimination with the EEOC, and requires that the EEOC process be completed, before a lawsuit can move forward. In litigation parlance, this is known as "exhausting administrative remedies", and a failure to do so is generally fatal to any Title VII lawsuit.

There are certain limited exceptions to this rule - a plaintiff can allege that he was somehow prevented from filing his charge of discrimination because of actions by his employer or incompetence by the EEOC that interfered with his ability to file.  Under these very limited circumstances, a plaintiff may have an equitable basis to proceed without first exhausting the administrative process.

And that's where it gets really interesting here. The Court of Appeals reversed the district court's dismissal of the gender discrimination claim, determining that it was possible that an equitable defense might exist. The equitable defense in question is a change in the law, specifically, the Court noted that after 2012, the EEOC determined that transgender discrimination was actually a form of gender discrimination and could be pursued under the statute.

I might note that when Title VII was originally passed, the prospect of gender orientation discrimination was never considered or intended by the drafters, and to this day the statute does not contain language making gender orientation a protected class. Transgender and homosexuality cases have been pursued by the EEOC on a "gender stereotyping" theory, which normally arises in a very limited set of circumstances. Plaintiff was careful to allege several of those circumstances in his later federal complaint.

So the case goes back to the district court to determine whether the plaintiff is excused from even filing a charge of discrimination on a set of facts going back 10 years because now the Commission believes that it can take these claims and process them.

This is a little disturbing, since theoretically the analysis opens the door to not only hundreds of gender orientation cases, but every other type of claim in which the executive agency's interpretation of the statue has evolved. Perhaps the appellate court did not mean that everyone with a gender orientation discrimination claim that got tossed prior to 2012 can now come back into court, but there is no limiting language in the opinion. This is another one of those situations in which I hope I'm reading too much into the Court's analysis.