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To achieve our goal of keeping you informed, this blog is Part XXI and an update of our series on federal laws that apply to workplace harassment, discrimination, & retaliation in New York. In Part XX, we provided you with an overview of the “Private Right of Action” under various applicable federal laws. To move the discussion forward, we now change gears, yet again, to look into the “Exhaustion Requirement” under the various federal laws in this blog and Part XXI of the series.

Exhaustion Requirement under Federal Laws Applicable to Workplace Harassment, Discrimination, & Retaliation in New York

Under this context, the exhaustion requirement is a legal doctrine, which requires individuals challenging an employer’s decision to pursue the employer’s available remedies before they can seek judicial intervention.

Title VII of the Civil Rights Act of 1964 (Title VII)

Pursuant to 42 U.S.C. § 2000e-5(e), the exhaustion of administrative remedies is required under Title VII of the Civil Rights Act of 1964 (Title VII).

Pregnancy Discrimination Act (PDA)

Pursuant to 42 U.S.C. § 2000e-5(e), the exhaustion of administrative remedies is required under the PDA, just as mandated under Title VII.

Americans with Disabilities Act (ADA)

Pursuant to 42 U.S.C. § 12117(a), the exhaustion of administrative remedies is required under the ADA as it is required under Title VII.

Fair Labor Standards Act (FLSA)

Pursuant to 29 U.S.C. § 216(b), an employee who feels aggrieved by their employer may file a civil action in court if such an employee wishes not to file a complaint with the Department of Labor (DOL) or any other administrative agency first.

Equal Pay Act (EPA)

Based on past rulings held by courts, complainants are not required to exhaust administrative remedies before they can file lawsuits under the EPA.

Age Discrimination in Employment Act (ADEA)

Pursuant to 29 U.S.C. § 626(d), an individual has 60 days after a discrimination charge has been filed with the Equal Employment Opportunity Commission (EEOC) to initiate a civil action under the ADEA.

Section 1981

While allegations of violations of Section 1981 are not investigated by the EEOC, employees may file a discrimination charge with the EEOC or another administrative agency before exhausting their administrative remedies.

Patient Protection and Affordable Care Act (ACA)

Pursuant to 29 C.F.R. § 1984.114, the exhaustion of administrative remedies is required under the ACA as it is required under Title VII.

Family and Medical Leave Act (FMLA)

Pursuant to 29 C.F.R. § 825.400(a) & 29 U.S.C. § 2617(a)(2), the exhaustion of administrative remedies is not required under the FMLA.

Immigration Reform and Control Act (IRCA)

There is no individual right that complaints can be filed in federal or state court under the IRCA. However, pursuant to 8 U.S.C. § 1324b(d)(3), a complaint charge alleging a violation of IRCA must be filed with the Office of Special Counsel (OSC) within 180 calendar days from the day of the occurrence of the discrimination. On its part, the OSC is required to determine, 120 days after a discrimination charge has been filed with them, whether it would proceed to an administrative judge and file a complaint or whether there is a “reasonable cause” behind which the truthfulness of the charge can be ascertained. Generally, a person has 90 days to file a complaint before an administrative law judge if the OSC chooses not to file a complaint. Further, pursuant to 8 U.S.C. § 1324b(i)(1), the losing party may proceed to the federal court of appeals to appeal the decision of the ALJ for either where the employer is based or transacts business or the circuit where the alleged violation occurred. Finally, pursuant to 8 U.S.C. § 1324b(i)(2), except for review by the U.S. Supreme Court, no further appeal is allowed.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

The USERRA does not mandate the exhaustion requirement. Thus, if they do not wish to seek assistance from the Department of Labor, Veterans Employment and Training Service (VETS), employees may initiate a private action for relief against a private or state employer.

Employee Retirement Income Security Act (ERISA)

As is the case with Section 510 claims, there is no agreement of authority regarding whether the exhaustion of administrative remedies is required if a statutory violation is the basis of a plaintiff’s claim. For instance, it has been held that exhaustion is not required for claims brought under ERISA Section 510 in the Third, Ninth, and Tenth Circuit Courts of Appeals. On the contrary, the exhaustion of administrative remedies for all ERISA claims is required in the Seventh or Eleventh Circuit. However, if seeking review would be futile under the circumstances or the individuals lack access to review mechanisms, courts in these jurisdictions may excuse a failure to comply with the exhaustion requirement.

Genetic Information Nondiscrimination Act of 2008 (GINA)

Before filing a complaint in a state or federal court, GINA requires a person to file a discrimination charge with the EEOC first. This implies that pursuant to 42 U.S.C. §§ 2000ff-6(a)(1), 2000e-5(e)(1), administrative exhaustion is required under GINA.

Be on the look for Part XXII, in which we will hammer on the “Statute of Limitations” under these federal laws that apply to workplace harassment, discrimination, & retaliation in New York.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.