What if a discrimination lawsuit has allegations against you as an employer that were NOT in the Charge of Discrimination?

How many of you recognize this letterhead?

About half of you just reflexively tensed up. Sorry about that! But now that we have your attention, let’s talk about the recent 4th Circuit case, MARJAN SHARIFI v. UNIVERSITY OF MARYLAND AT BALTIMORE, and how it reminded employers of an oft-forgotten prerequisite to a discrimination/retaliation lawsuit: the employee must actually raise the particular claim(s) the employee intends to advance in his/her EEOC Charge of Discrimination.  It may not be our federal circuit, the Eleventh Circuit, but it provides a very necessary reminder.  

The facts of the case are largely irrelevant. The short version is that a former employee of the University of Maryland filed a Charge of Discrimination with the EEOC, alleging employment discrimination, disparate treatment, and constructive discharge in violation of Title VII  of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17.

Subsequently, this former employee filed a lawsuit against the University of Maryland, alleging employment discrimination, disparate treatment, constructive discharge, and retaliation in violation of Title VII.  

The University of Maryland astutely pointed out that the lawsuit was the very first they’d heard of any version of “retaliation,” as such was never alleged in the former employee’s EEOC Charge. The University of Maryland argued that, due to this omission, the would-be plaintiff had failed to satisfy the administrative prerequisites of a claim under Title VII, i.e. the filing of a Charge of Discrimination with the EEOC. 

But remember, our putative plaintiff did file an EEOC Charge; accordingly, the plaintiff’s counsel argued that they had satisfied the “EEOC Charge” requirement for a Title VII suit, because the retaliation theory could be inferred from the context and narrative of this initial Charge. 

The Court disagreed.

In the Court’s words: “Sharifi failed to check the box for retaliation on her EEOC charge and did not mention retaliation in the narrative portion of her charge. Further, Sharifi’s EEOC charge made no reference to facts from which a claim of retaliation could have developed beyond her filing of one complaint about her professor’s harassment. Moreover, her charge stated explicitly that her professor’s actions occurred because of national origin discrimination and did not mention retaliation for filing a complaint.”

The Court went so far as to decline to hear any oral arguments to the contrary, declaring that “[T]he facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.” In other words, all the Court need to hear was that the Charging Party failed to mention – or even describe – retaliation in their EEOC Charge, to determine that the would-be plaintiff had failed to satisfy the administrative prerequisite of a Title VII lawsuit, namely: the a requirement that a potential plaintiff first inform the EEOC of the facts and legal theories associated with their case. 

So, the next time you see that EEOC letterhead, don’t panic! Because believe it or not, your best defense – one that is sure to buy you some 180 days of additional negotiation or, failing that, trial preparation – might just be found (or missing from!) within the Charge itself.  But if you do receive a Charge, and you find that you just don’t have the stomach to parse through a disgruntled former employee’s rambling diatribe against you/your employees, we’re always standing by – fine-toothed combs at the ready – to slog through their Charge and assert defenses at the appropriate time.