Employers usually picture depositions and performance records when they think about defending an employment lawsuit — not procedure. But some of the most effective defenses never reach the merits at all. A recent 6th U.S. Circuit Court of Appeals decision, Barnett-Morgan v. Inverness Technologies, Inc., is a good reminder that procedural defenses are worthy of early attention: A plaintiff’s failure to exhaust administrative remedies with the Equal Employment Opportunity Commission (EEOC) can end a claim regardless of how strong it might be.
Link to What Happened in the Case What Happened in the Case
Former employee Renete Barnett-Morgan alleged in her lawsuit that Inverness Technologies terminated her for race discrimination and in retaliation for complaining about a coworker’s hostile behavior. When she completed her EEOC charge related to her claims, Barnett-Morgan did not check the retaliation box, did not mention retaliation in the body of her charge, and principally focused on race discrimination.
After briefing highlighted this deficiency, Barnett-Morgan tried to save her retaliation claim by pointing to an earlier online inquiry to the EEOC and a later email sent during the agency’s investigation, both of which she said referenced retaliation. The 6th Circuit rejected this argument and affirmed summary judgment for the employer.
Link to The Key Legal Holdings on Exhaustion The Key Legal Holdings on Exhaustion
- The lawsuit is limited to the scope of the charge. As the court explained, “a Title VII plaintiff cannot bring claims in a lawsuit that were not included in [her] EEOC charge.” In other words, a theory not fairly encompassed by the charge generally cannot be litigated later.
- Liberal construction has limits. Courts often read EEOC charges leniently, because many employees file pro se, but the charge must still provide some sort of notice that the employee may have suffered the claim alleged.
- Not every EEOC communication will be considered encompassed within the “charge.” The court applied a three-part test: (1) the document must be verified (under oath or penalty of perjury); (2) it must be sufficiently precise to identify the parties and describe the conduct at issue; and (3) an objective observer must conclude the filing, as a whole, asks the agency to investigate and pursue remedies. The employee’s online inquiry and email to the EEOC failed on every count with respect to retaliation — unverified, imprecise, and requesting no relief.
Link to Why This Matters for Employers Why This Matters for Employers
This decision reinforces two useful lines of defense: Claims outside the four corners of the charge can be attacked early, and plaintiffs cannot manufacture exhaustion after the fact by pointing to informal pre- or post-charge communications. Takeaways for employers include:
- Evaluate exhaustion early — ideally at the pleading or early motion stage. Compare the EEOC charge against every claim asserted in the complaint. Mismatches are a red flag worth raising immediately.
- Use exhaustion as a narrowing tool, not just an all-or-nothing defense. Even where some claims survive, exhaustion arguments can knock out specific theories (like retaliation in the Barnett-Morgan case) and meaningfully reduce exposure and litigation cost.
- Loop in counsel when responding to an EEOC charge. How an employer characterizes the charge and the claims at issue in its position statement can matter later if exhaustion becomes a dispute.
Bradley’s Labor & Employment Practice Group regularly advises employers on discrimination claims and drafts position statements in response to EEOC charges. Employers responding to an EEOC charge that does not reflect a claim the employer expected to receive or is otherwise inconsistent with an employee’s communications should consult experienced counsel before providing a comprehensive position statement.