Defendants have the burden of pleading and proving Title VII exhaustion issues

The Second Circuit says for the first time that the defendant has the burden of showing that the plaintiff in a Title VII suit did not properly exhaust his administrative remedies.

The case is Hardaway v. Hartford Police Department, decided on January 12. Hardaway claims that management subjected him to racial discrimination in employment. To bring a claim under Title VII, plaintiffs have to file an administrative charge of discrimination with the EEOC or the state human rights office within 300 days of the discriminatory act. We call this "Title VII exhaustion," which is not a jurisdictional requirement. That means the defendant can waive its objection to an untimely Title VII action. Also, the Title VII exhaustion requirement is "subject to equitable defenses."

In the past, the Second Circuit has said compliance with the Title VII filing deadlines operate as an affirmative defense. It has also said the failure to exhaust administrative remedies "can be asserted by the government as an affirmative defense" in Title VII cases bought by federal employees, whose cases are governed separate statutory provisions and regulations.

Further developing this exciting line of cases, the Court of Appeals (Winter, Pooler and Calabresi) adopts the view taken by most of the other circuits, holding that "the burden of pleading and proving Title VII exhaustion lies with defendants and operates as an affirmative defense." This decision "follows from other areas where administrative exhaustion is an affirmative defense," such as in prisoner litigation under the PLRA.