Before filing suit alleging discrimination, Title VII requires plaintiffs to file a charge of discrimination with the Equal Employment Opportunity Commission. If the plaintiff files an EEOC charge, but includes claims in his subsequent lawsuit that do not appear in the charge, the employer can move to dismiss those claims for failure to exhaust administrative remedies. Earlier this month in an unpublished opinion, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) determined that an employer’s EEOC response that discussed possible claims not included in the charge did not alter this exhaustion requirement.

In Mercer v. PHH Corp., the plaintiff chaired his employer’s diversity committee. He complained to the company president about remarks made at an employee presentation. Subsequent to this complaint, the plaintiff was fired for fraudulent business activities. He filed an EEOC charge alleging that he was terminated in retaliation for the earlier complaint. The charge did not check the box for race discrimination, and the charge narrative never alleged that his termination was based on race. The employer obtained summary judgment from the district court on the race discrimination claim on the basis that this allegation did not appear in the EEOC charge.

The Fourth Circuit affirmed this dismissal. On appeal, the plaintiff argued that because the employer addressed possible race discrimination claims in its position statement to the EEOC, it was on notice of this claim. The court rejected this reasoning, concluding that the contents of the employer’s response cannot change the plaintiff’s statutory obligation to include the race claim in his charge. While the failure to check the appropriate box on the charge form was not dispositive, the charge narrative never mentioned race as a motivating factor behind the termination decision.

Employers that receive EEOC charges should carefully review their allegations before responding. As a matter of practice, the response should not address legal claims not contained in the charge. However, as demonstrated by this decision, if the employer touches on these other possible claims in its response, this reply will not confer jurisdiction over claims not reasonably discernible from the EEOC charge.