Overturning nearly four decades of precedent, the U.S. Court of Appeals for the Tenth Circuit in Lincoln v. BNSF Railway Co. held that the filing of a charge of discrimination with the Equal Employment Opportunity Commission was not a jurisdictional prerequisite to filing an employment discrimination suit. Thus, the failure to file a charge does not prevent a court from assuming jurisdiction over the suit. The employee’s failure to file a charge, however, does constitute an affirmative defense for the employer. Such defense is subject to waiver, estoppel and equitable tolling.

Notably, most other jurisdictions have already come to that conclusion – all but the Fourth, Ninth and Tenth Circuits. Accordingly, in these Circuits, employers can still argue that the failure to file a claim and exhaust administrative prerequisites deprives the court of jurisdiction; in almost all other jurisdictions, however, it must be specifically pled as an affirmative defense and employers need to make sure that nothing is done to waive it.