In a recent EmployNews article, we reported on a federal appellate circuit split over how courts should dispose of employment discrimination suits where the plaintiff fails to file an EEOC charge within the required statutory time period. Last month, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) added to this debate, concluding that the charge filing requirement is a prerequisite to recovering from the employer, but it does not deprive the court of jurisdiction over the claim in the first place.

Stewart v. Iancu involved a federal government employee who filed suit alleging discrimination and retaliation. The district court granted the government’s §12(b)(1) motion to dismiss the claim for lack of jurisdiction based on the failure to file a timely EEOC charge. On appeal, the Fourth Circuit reversed and remanded this dismissal. The court said that the charge filing requirement is a prerequisite to filing suit, but that does not mean federal courts cannot hear the claim.

While this decision involved the public sector employee portion of Title VII, its reasoning should apply to claims against private employers. Instead of §12(b)(1), employers with untimely claims should file a §12(b)(6) motion at the outset of litigation. Unlike the jurisdictional claim, this motion must be filed early, and the defense can be lost if the defendant delays until later in the litigation process. For employers facing discrimination lawsuits, this means that it is more important than ever to make an initial calculation as to whether the plaintiff has appropriately exhausted administrative remedies before filing suit. In addition, the U.S. Supreme Court is currently considering an appeal in another case that could settle this issue.