The Charge filing procedure at the Equal Employment Opportunity Commission involves completion of an intake questionnaire and submission of supporting or explanatory documentation. The EEOC staff then takes this information and prepares a Charge narrative to be signed by the Charging Party and sent to the employer. Under Title VII and related laws, plaintiffs must file an EEOC Charge before suing the employer.

Over the past several decades, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) has considered a string of cases involving situations where the EEOC Charge sent to the employer does not match the allegations contained in the subsequent lawsuit. In most cases, courts liberally construe the Charge filing requirement to avoid penalizing plaintiffs when the EEOC fails to accurately convey the nature of the allegations. In other situations, courts conclude that the employer could infer related behavior from the allegations specifically contained in the Charge.

Earlier this month, the Fourth Circuit demonstrated that the Charge filing requirement still has teeth, rejecting a failure to promote claim when the EEOC Charge sent to the employer made no mention of this allegation. In Balas v. Huntington Ingalls Indus., Inc. the plaintiff completed a questionnaire alleging sex discrimination and failure to promote on the basis of sex. The Charge initially prepared by the EEOC did not mention the promotion issue, but the plaintiff requested that it be changed to add sexual harassment allegations. She later sued, including in her claims the failure to promote allegations.

The Fourth Circuit affirmed dismissal of the promotion claim on the basis that it was not included in the EEOC Charge. The court concluded that the employer did not have fair notice of this claim despite the fact that it was based on the same sex discrimination grounds as the other charges. The EEOC's possible negligence in failing to include this claim in the Charge did not change this result. The agency was not required to send the employer the original questionnaire, and absent such notice, the Fourth Circuit refused to consider it as part of the Charge.

Employers responding to Title VII and related suits should carefully check the allegations contained in the complaint to make sure that they match those in the EEOC Charge. While courts will extend considerable leeway to plaintiffs, if the employer can demonstrate that it had no fair notice of the substance of the claims at the EEOC stage, the employer should be able to dismiss those parts of the subsequent lawsuit.