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Tenth Circuit holds that failure to exhaust is an affirmative defense not a jurisdictional defect in Title VII claims

The Tenth Circuit has reversed longstanding precedent to, now, hold that a plaintiff’s failure to exhaust the administrative charge requirements of a Title VII claim is a mere affirmative defense, not a jurisdictional defect. What’s the difference? The courts have jurisdiction to hear the circumstances surrounding the failure to exhaust when it is asserted as an affirmative defense. In this case, the plaintiffs apparently had failed to exhaust; however, they pointed to a prior stipulation by the defendant in which the company had agreed that they had in fact exhausted. The trial court had originally ruled, in line with the Tenth Circuit’s longstanding precedent, that a failure to exhaust is jurisdictional and that it, therefore, lacked jurisdiction over the claims and could not, as a result, entertain argument over the stipulation. The Tenth Circuit remanded, holding that the failure to exhaust was merely an affirmative defense, and as such the trial court is authorized to consider the stipulation.

Source: Lincoln v. BNSF Railway Co., case no. 17-3120 (10th Cir. 8/17/18).