The answer is no, according to the 10th Circuit Court of Appeals (which covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus those portions of the Yellowstone National Park extending into Montana and Idaho). This decision brings it in line with other circuit courts of appeals.
In the case of Larry D. Lincoln and Brad C. Mosbrucker v. BNSF Railway Co., No: 17-3120 (10th Circuit Court of Appeals, 8/17/18), Lincoln and Mosbrucker were hurt in late 2007 when a nearby BNSF rail car sprang a leak and injured the workers. They eventually lost their jobs due to chronic injuries that included headaches, post-traumatic stress disorder, and anxiety. These injuries required them to work indoors.
Lincoln and Mosbrucker claimed, among other claims, that BNSF violated the Americans with Disabilities Act by discriminating against them, not accommodating their disabilities, and retaliating against them after they requested accommodations. Lincoln had applied to 21 jobs over a three-year period while Mosbrucker applied to 22, neither being hired. Each then submitted a second accommodation request letter to BNSF, seeking a job placement with a restriction for only infrequent exposure to the outdoors. Both letters asked BNSF to “enter into the interactive process” and to “continue the present search for a non-Maintenance of Way (MOW) placement for [each of them] within BNSF.”
However, neither attached any documentation from a health professional to the accommodation request letter, as required by the form instructions. Thus, while their accommodation request letters suggested that they could perform the duties of a position that entailed some outdoor exposure, the only medical documentation BNSF ever received indicated that they could not work outdoors at all. BNSF offered to pay for vocational training opportunities and for Lincoln to attend two quarters of college classes so that he could complete his college degree.
On February 10, 2013, the workers filed an EEOC charge. On May 7, 2015, Mr. Mosbrucker filed a second charge with the EEOC. On July 22, 2015, the EEOC issued Lincoln a right to sue letter. He was also issued right to sue letters on July 24, 2015, and on September 15, 2015.
They filed a lawsuit against BNSF claiming ADA violations and retaliation, among other charges. BNSF claimed on summary judgement that both failed to exhaust their ADA administrative remedies relative to employment actions before April 16, 2012 (a date that was stipulated to by the parties of the lawsuit)—more than 300 days before Lincoln filed his sole EEOC charge and more than 300 days before Mosbrucker filed his first EEOC charge. BNSF also noted that “[e]xhaustion of administrative remedies is a jurisdictional prerequisite to bringing a lawsuit in federal court under the ADA.” The trial court dismissed the charges for lack of jurisdiction.
On appeal the 10th Circuit Court of Appeals three-judge panel overturned the exhaustion argument. The Court stated that its recognition of previous precedent that an EEOC charge must be filed and resolved before a lawsuit could be filed was erroneous. The Court found that the U.S. Supreme Court in a 1982 case held that filing an EEOC charge within the statutory time limit established by 42 U.S.C. § 2000e-5(e)(1) was not a jurisdictional prerequisite to suit. Moreover, the language of the statute only provided jurisdictional requirements for the filing of a charge, not a lawsuit. Further, the Court polled the entire court before issuing this decision, because one panel within an appellate court cannot overturn precedent. The polling agreed with the panel.
The court then acknowledged it was abandoning "nearly 40 years of precedent" holding that it lacked jurisdiction over federal bias claims unless workers make a timely request for the EEOC to investigate their complaints.
The 6th Circuit Court of Appeals, which covers Michigan, previously ruled in 2009 “that although administrative exhaustion is still a statutory prerequisite to maintaining claims [with the EEOC] brought under the ADEA, the prerequisite does not state a limitation on federal courts' subject matter jurisdiction over such claims.” In other words, an employer may still escape liability by showing that workers bringing claims didn't complain to the EEOC within the time limit — they just have to frame it as an affirmative defense rather than a jurisdictional issue.