Supreme Court sides with Tenth Circuit, resolving split in Circuits, holding failure-to-exhaust is a procedural affirmative defense, not a jurisdictional defect
Resolving a split among the Circuits, the Supreme Court sided with the Tenth Circuit‘s recent approach, ruling that an employee’s failure to exhaust the statutory prerequisites for filing claims of discrimination and most kinds of EEO (equal employment opportunity), i.e., Title VII claims, is a procedural affirmative defense, not a jurisdictional defect. This means the defense can be waived by employers who fail to assert it.
Employers should ensure that they review all available defenses and assert viable ones throughout their defense of such claims.
Source: Fort Bend County v. Davis, — Sup.Ct. —, case no. 18-525 (6/3/19).