If a person or company breaches a contract they have, that person or company can be sued immediately in court. If someone gets in a car wreck, in theory, a lawsuit could happen the next day. Ditto if you don’t get paid minimum wage or overtime. But with employment discrimination and retaliation, as with many whistleblower statutes, a lawsuit cannot happen until after administrative remedies have been exhausted. So what does that mean?
Basically, exhaustion of administrative remedies means having to report the discrimination, retaliation or whistleblower retaliation to a certain agency, department, or authority. For example, if you were discriminated against by your employer in Texas because of you race, age, gender, disability, religion, national origin, or color, you must first report it to either the Equal Employment Opportunity Commission (EEOC), the Texas Workforce Commission (TWC), or a Fair Employment Practices Agency (FEPA). These agencies then have a statutorily required amount of time to investigate the claim before the agency issues a right to sue. It is this right to sue or entitlement to that right to sue that allows a person to take the discrimination claim to federal or state court. The exact same process must occur for retaliation claims involving retaliation for opposing discrimination based on race, age, gender, disability, religion, national origin, or color. But after you receive your right to sue or entitlement to a right to sue, your administrative remedies have been exhausted.*
The deadlines for filing with the EEOC, TWC or FEPA are extremely short as deadlines go. To preserve federal law claims, the charge must be filed within 300 days of the adverse action. To preserve state law claims, the charge must be filed within 180 days of the adverse action. Moreover, Texas state law employment discrimination/retaliation claims have a second statute of limitations that must be met. State law employment discrimination claims must be brought within two years of the filing of the charge of discrimination regardless of whether a right to sue has been issued. These deadlines are even shorter for federal employees.
Whistleblower claims have myriad different agencies, departments, or individuals that must be reported to in order to begin exhausting administrative remedies. Moreover, the deadlines for such reporting are all over the place ranging from 30 days to 2 years.
I hear what you are thinking: what happens if I don’t exhaust my administrative remedies? Well, in most situations that means your case will get kicked out without ever reaching the merits, which is a major bummer.
Is there any hope if I didn’t exhaust my remedies? Yes! But it is super risky. Recently, the U.S. Supreme Court held that exhaustion of administrative remedies for purposes of federal employment discrimination laws are not jurisdictional. Fort Bend County, Tex. v. Davis, 139 S. Ct. 1843, 1850, 204 L. Ed. 2d 116 (2019). That means that a defendant must affirmatively plead and prove that you did not exhaust administrative remedies before your case can be kicked out on that basis. In most cases, defendants will plead the affirmative defense of a “failure-to-exhaust” just in case. So, it is unlikely that most plaintiffs can take advantage of this fact, but it does happen.
This leads to two takeaways. First, between reporting to the right agencies, departments, or persons and doing so within the proper timeframe things can get complicated. Second, if you suspect unlawful discrimination or retaliation, you should act quickly. A lawyer can help you through this process and make sure that by the time you have exhausted your administrative remedies you are in the best position to file suit.
*There’s that phrase again: “entitlement to a right to sue.” That’s weirdly phrased, you think. You’re right. You are so smart to notice that. It’s phrased that way because of a quirk in Texas law. Under Chapter 21 of the Texas Labor Code, courts have determined that neither the actual right to sue nor even the request for a right to sue is necessary to exhaust state administrative remedies. Instead, all that is required is that 180 days pass since the charge was filed. Then on the 181st day, you can file your lawsuit without tasking any other action because administrative remedies have been exhausted. See City of Houston v. Fletcher, 63 S.W.3d 920, 923 (Tex. App.-Houston [14th Dist.] 2002, no pet.); see also Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513-14 (Tex. App.-Waco 2004, pet. denied). That’s kinda fun, right? Not a lot of people, including not a lot of employment lawyers, know that, but now you are one of the few who does!