The requirement for an employee to exhaust administrative remedies may go beyond filing a charge with the Equal Employment Opportunity Commission (“EEOC”) and state employment agencies. Industry-specific exhaustion requirements may be used to further defend an employment lawsuit. Courts of all jurisdictions recognize and agree that a plaintiff must exhaust all administrative remedies before seeking judicial relief. It is also well known that an employee must file a charge and exhaust all administrative remedies with the EEOC before filing a lawsuit against an employer for discrimination in federal court. The same rules apply in state court for claims that fall under the jurisdiction of state employment agencies. However, other federal laws and regulations also require exhaustion of administrative remedies in separate forums, in addition to the EEOC, before employees may pursue their claims in any court. Furthermore, the EEOC specifically recognizes that federal laws and regulations govern, noting that an employer may have a defense to a charge of discrimination if an action is required or necessitated by another federal law or regulation.

Transportation is a key component of most businesses in this day and age. Therefore, many employers are governed by federal law, specifically federal transportation laws under the Department of Transportation (“DOT”) and Federal Aviation Administration (“FAA”). Most notably, industries governed by federal transportation laws may have very specific administrative remedies that must be exhausted, in addition to the EEOC process, before an employee’s discrimination case should be allowed to proceed.

Motor carriers governed by the DOT are subject to very specific safety regulations to protect the public. For example, if a driver claims discrimination based on a medical issue, the DOT has a specific administrative appeal process under 49 C.F.R. § 391.47. Per the regulation, the employee seeking review “must submit proof that there is a disagreement between the physician for the driver and the physician for the motor carrier concerning the driver’s qualifications.” In the context of the Americans with Disabilities Act (“ADA”), the Eighth Circuit has interpreted this regulation liberally, requiring that the applicant exhaust the DOT appeal process, even if the conflict is between two physicians for the motor carrier. Furthermore, if the physician for the motor carrier disqualifies a driver, that applicant must procure “independent testimony supporting a contrary medical opinion” and exhaust his administrative remedies under 49 C.F.R § 391.47 before proceeding to court. Although it has not been determined if this exhaustion requirement extends outside the ADA to the Family and Medical Leave Act (“FMLA”), courts have recognized that Congress vests driver fitness issues in the Secretary of Transportation and will require an employee to exhaust his administrative remedies with the DOT before seeking judicial relief.

Similarly, airline pilots who are denied a medical certificate need to exhaust their administrative remedies with the FAA, as well as the EEOC, before claiming discrimination in federal court. FAA regulations require that decisions regarding medical certificates be appealed within 30 days to the Federal Air Surgeon. If the applicant does not appeal within 30 days, the FAA considers the application for a medical certificate to be withdrawn under 14 C.F.R. § 67.409.

If failure to exhaust administrative remedies can be shown, dismissal is appropriate. In one case, the U.S. District Court for the Eastern District of Michigan determined that plaintiff with an ADA claim fell within the scope of the Federal Motor Carrier Safety Regulations (“FMCSR”) and must exhaust all administrative remedies under the FMCSR, separate from the obligation to exhaust administrative remedies under the ADA.

The courts have also found that exhaustion of administrative remedies applies when the EEOC, not the employee, files suit. Although the EEOC does not stand in the employee’s shoes and, therefore, does not need to submit to arbitration under the Federal Arbitration Act, the courts have still found that the EEOC needed to exhaust administrative remedies under the ADA if the FMCSR apply. The federal courts have differentiated the Federal Arbitration Act from the FMCSR by, once again, looking to the authority that Congress has vested in the Secretary of Transportation. Furthermore, the courts have found that the EEOC must exhaust administrative remedies because, if not, the EEOC could essentially override the authority granted to the Federal Motor Carrier Safety Administration, which has a Congressional mandate of its own.

The courts have shown great respect for the DOT regulations, finding that bypassing the DOT administrative process would undermine the statutory and regulatory scheme of the DOT, which is specifically charged with making such determinations in the event of a dispute and has the expertise to address these issues as the agency charged with resolving conflicts in medical opinions. The Eighth Circuit Court of Appeals also found the DOT to be much more capable than the courts in handling such disputes, determining that the DOT is better equipped than the courts to handle resolution of disputes over a driver's medical qualifications.

It is important to note that dismissal of a case for failure to exhaust administrative remedies will normally be without prejudice. However, the opportunity for the employee to renew the administrative process may have expired.

When defending an employment discrimination suit against an employee or the EEOC, exhaustion of administrative remedies should be explored as a possible defense, especially in industries governed by federal transportation laws. Employers should consider identifying the laws and regulations which govern their employment decisions and pinpoint provisions which may be used for an exhaustion of remedies defense. Counsel can help identify and develop these opportunities for potential dismissal of a case.