Claim of Nonverbal Racial Harassment Survives Even Though Plaintiff Never Asserted Nonverbal Harassment in His EEOC Charge

Does the failure to include instances of “nonverbal harassment” in an EEOC charge bar a plaintiff from asserting such harassment as a basis for a Title VII lawsuit?  So long as the nonverbal conduct is reasonably related to the claims actually set forth in the EEOC charge, the answer is probably “no.”  The difficulty, of course, is in determining whether the new allegations in the civil action are reasonably related to the claims contained in the EEOC charge.

In Coles v. Carilion Clinic, a black employee sued his employers for racial harassment and discrimination under Title VII.  Prior to filing his lawsuit, he filed a Charge of Discrimination with the Equal Employment Opportunity Commission, stating that, among other things, he had been subjected to “verbal racial harassment.”  Later, the employee filed a civil action, alleging that, in addition to verbal harassment, he was subjected to a display of shackles and a noose in the workplace.  Seizing upon the references in the complaint to nonverbal racial harassment, the defendant employers sought to dismiss the complaint for lack of subject matter jurisdiction.  The employers argued that because the allegations of nonverbal racial harassment were not included in the EEOC charge, the court lacked jurisdiction to address the merits of the claim.

To determine whether it had jurisdiction, court focused on whether the nonverbal conduct was reasonably related to the original EEOC charge or, alternatively, whether such conduct would be discovered through reasonable investigation of the original charge.  In concluding that the nonverbal conduct was reasonably related to the original EEOC charge, the court focused on the fact that the plaintiff did not “completely renovate his central factual allegations as between the administrative charge and the compliant.”  In other words, the complaint did not introduce new actors or time frames – it only added additional details.  Also, the court noted that the allegations of a noose in the workplace would also likely be discovered through a reasonable investigation of the claim of verbal harassment.

The court’s decision in Coles was driven, in large part, by policy considerations.  Noting that the exhaustion requirement should not be a tripwire for hapless plaintiffs, the court refused to focus on the technical similarities between the EEOC charge and the civil action.  Otherwise, the court explained, if technical dissimilarities between an EEOC charge and a subsequent civil complaint were dispositive, the courts would effectively encourage individuals to retain counsel early, thus increasing the likelihood and cost of litigation.

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