Labor & Employment Law Daily Wrap Up, SUPREME COURT DOCKET—High Court weighs limits on raising late-stage defenses in employment cases, (Nov 3, 2026)

By Brandi O. Brown, J.D.

Supreme Court Justices explored whether existing federal rules governing amendments to pleadings provide the answer to a growing circuit split over late-raised affirmative defenses.

The U.S. Supreme Court wrestled Monday with whether employers and other civil defendants may wait until summary judgment to raise affirmative defenses that were not included in their original pleadings.

The case, Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, arises from a pregnancy discrimination lawsuit brought by the former Fulton County Deputy Chief of Staff and Director of Policy and Programs. Ms. Younge alleges she was pushed out of her job shortly after informing the District Attorney that she was pregnant.

Announcement, then termination. According to court filings, Younge informed the DA on July 1, 2019, that she was pregnant. She alleges the DA reacted angrily, asking, “What is this supposed to mean?” and “Is this a threat?” Younge contends that her duties were immediately reassigned, she was excluded from meetings, and she was terminated two weeks later despite having no disciplinary actions, reprimands, or complaints in her personnel file. She filed suit.

Procedural question. While the dispute arises from a Title VII pregnancy discrimination claim, the Supreme Court's attention is focused on a procedural question: whether the Fulton County District Attorney’s Office was permitted to rely on Title VII’s “personal staff” exemption after failing to plead it in its answer and waiting until summary judgment to assert it.

The exemption excludes certain close advisers and members of an elected official’s personal staff from Title VII’s coverage.

Late-raised exemption invocation. After Younge filed suit, the District Attorney’s Office asserted several affirmative defenses but did not invoke the personal-staff exemption. Discovery proceeded under a Rule 16 scheduling order, and the deadline for amending pleadings passed. More than seven months later, after discovery had largely closed, the office first mentioned the exemption during a hearing on a discovery dispute. It subsequently relied on the exemption in a motion for summary judgment without amending its answer.

Allowed. Both the district court and the Eleventh Circuit sided with the employer. Applying circuit precedent, the lower courts concluded that an unpled affirmative defense could be considered so long as the plaintiff was not prejudiced by the delay. The courts found Younge suffered no prejudice, allowed the defense, and held that her position placed her within the personal-staff exemption, therefore barring her Title VII claims.

Employee’s arguments. Before the Supreme Court, Younge's counsel argued that the approach by the Eleventh Circuit effectively allows defendants to circumvent Rules 8, 15, and 16 of the Federal Rules of Civil Procedure. Arguing for the employee, attorney Eric Schnapper asserted that Rules 8 (and 12) require affirmative defenses to be pleaded in an answer, Rule 15 governs amendments to pleadings, and Rule 16 imposes an additional “good cause” requirement once a scheduling deadline has passed.

He maintained that courts should not permit defendants to bypass those requirements simply by waiting until summary judgment to introduce a new defense.

Rules 8 and 12 rewritten. He argued that the approach taken by the courts below “effectively rewrites Rules 8 and 12 to create categories of affirmative defenses that do not have to be pled, despite the fact that the plain text of those rules provide that any affirmative defense and every affirmative defense must be pled.”

Rule 15 and 16 standards should apply. Schnapper explained to the Justices that the employee was not taking the position that a separate motion is always required. Instead, he argued that when a defendant seeks to inject a new affirmative defense late in litigation, courts should evaluate the request under the same standards that would apply to an amendment under Rules 15 and 16.

That argument appeared to resonate with some members of the Court. Several Justices appeared interested in whether the case could be resolved through existing amendment procedures rather than a bright-line rule requiring a separate motion.

Justice Sonia Sotomayor suggested the dispute may boil down to whether courts must consider the traditional factors identified in Foman v. Davis, a 1962 decision by the Court, when allowing a late-raised defense, rather than focusing solely on prejudice. Schnapper agreed, describing that issue as the core of the case.

Justice Amy Coney Barrett noted that Younge's position seemed to be that a court could treat a summary judgment motion as a request to amend a pleading, provided the court applied the standards governing amendments under Rules 15 and 16. Schnapper agreed, later reinforcing that point in rebuttal.

"It doesn't have to be a formal motion," he later told the Court. "The court could treat a summary judgment motion as a motion to amend." That clarification shifted part of the discussion toward whether the Eleventh Circuit erred by focusing primarily on prejudice to the plaintiff, rather than applying the broader considerations required by the Federal Rules.

Undue delay and good cause. Justice Neil Gorsuch similarly noted that Rule 15 permits courts to deny amendments for reasons beyond prejudice, including undue delay. He questioned why courts should ignore those considerations when a defendant raises a defense for the first time at summary judgment.

Justice Ketanji Brown Jackson repeatedly returned to Rule 16's good-cause requirement, suggesting that a prejudice-only test risks rendering portions of the civil rules meaningless. She expressed concern that litigants could simply bypass amendment procedures by withholding defenses until late in a case.

Several Justices also appeared interested in whether the Court could adopt a middle-ground approach used by some circuits, allowing courts to treat a summary judgment motion as a constructive motion to amend while still requiring application of Rules 15 and 16.

Employer’s arguments. Representing the District Attorney’s Office, former Georgia Solicitor General Stephen Petrany urged the Court to affirm the Eleventh Circuit's approach.

Petrany characterized the omission of the defense from the answer as a mistake but argued that the Federal Rules do not require forfeiture under such circumstances. He emphasized that Younge had notice of facts relating to the defense, that the issue was raised before summary judgment was decided, and that she failed to identify any additional discovery that would have altered the outcome. He argued that the employee had “virtually no argument for prejudice.”

Fair notice. The employer has also argued that its answer provided fair notice because it repeatedly described Younge as a member of the district attorney’s “personal staff,” a phrase that appears in the statutory exemption itself.

Younge has vigorously disputed that characterization, noting that the District Attorney’s Office repeatedly acknowledged in proceedings below that it had not actually pleaded the exemption as an affirmative defense. According to her filings, defense counsel conceded to the magistrate judge that the possibility of invoking the exemption did not arise until preparation of the summary judgment motion in early 2022.

Skepticism towards prejudice approach. Several Justices appeared skeptical of the employer's contention that prejudice should be the primary consideration.

Justice Elena Kagan questioned why courts should employ a judge-made prejudice standard when Rules 15 and 16 already establish explicit criteria governing amendments. If those rules provide the framework, she suggested, courts should simply apply them.

Justice Jackson likewise warned that a prejudice-centered approach could create incentives for defendants to delay asserting affirmative defenses rather than seeking timely amendments.

Not all the questioning favored Younge, however.

Justice Samuel Alito, in questioning Schnapper, suggested that cases involving significant delay, but little or no prejudice, may be relatively uncommon. “What I’m saying is I think we’re talking about a sliver, a sliver of cases where that’s going to be—there’s going to be undue delay without prejudice.” He also questioned whether imposing stricter procedural requirements could generate disputes over whether particular issues qualify as affirmative defenses or instead form part of a plaintiff’s prima facie case.

Circuit split. Underlying the dispute is a broader division among lower courts. Younge points to a circuit split over how late-raised affirmative defenses should be handled, with some courts requiring compliance with Rules 15 and 16 and others, including the Eleventh Circuit, allowing consideration of previously unpled defenses so long as the opposing party is not prejudiced. Other circuits have adopted intermediate approaches.

By the close of argument, several Justices appeared interested in whether the dispute could be resolved through existing amendment principles, rather than through a bright-line rule requiring a separate motion to amend.

A decision is expected by the end of the Supreme Court's current term.

The docket is No. 25-352.

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