Disparate impact cases are different in kind from the far more common disparate treatment claims that are the staple of single-plaintiff discrimination cases. Disparate treatment claims, of course, are ones in which an employee contends that he or she was treated less favorably than others on account of a protected trait, such as sex, race or color. Disparate impact claims not only involve different allegations (generally a facially neutral policy that has the effect of discrimination), but almost always require a virtual classwide review of the facts and careful statistical analysis.
Those differences proved fatal to the plaintiff’s disparate impact claims in the case of Spencer v. Comcast Corp., Civil Action No. 16-2589 (E.D. Pa. Feb. 17, 2017), because the plaintiff failed to account for them in his charge before the Equal Employment Opportunity Commission (EEOC). In Spencer, the plaintiff worked at a call center for the defendant. In early March 2015, he received a poor performance review for, among other things, communications, interpersonal affect, cultural diversity and discriminating on the basis of race. In response, he filed his own internal complaint contending that he was himself a victim of race discrimination. Shortly afterward, he was terminated for hanging up on a customer.
The plaintiff filed a charge of discrimination with the EEOC that focused on his own individual claim, but also referred to lighter-skinned African American or white employees who were not terminated for similar offenses. After the EEOC issued its notice of right to sue, he brought a proposed class action suit for, among other things, disparate impact race discrimination under Title VII. The defendant moved to dismiss because the allegations were beyond the scope of the plaintiff’s charge.
In ruling on that motion, the court noted the requirement that the claimant file a charge with the EEOC and that the scope of any Title VII litigation was limited to matters “which can reasonably be expected to grow out of the charge.” Quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976). Although suits should not be limited by minor technicalities in completing the charge (such as checking a box), the court found, the charge should not only put the employer on notice of the claims against it but also give the EEOC the opportunity to investigate and attempt to conciliate the claims.
By that measure, the court found that the charge asserted individual disparate treatment claims and was not sufficient to preserve the right to assert disparate impact claims. The plaintiff asserted that other documents should have placed the employer and the EEOC on notice of wider-ranging claims, such as the intake questionnaire and various requests for information. The gist of this argument was that had the EEOC done further investigation, it would have found that disparate impact claims could be at issue. The court, however, largely rejected this attempt to foist off the obligation to identify the claim to the EEOC, and found that these unsworn documents were insufficient to place the EEOC on notice that disparate impact claims were in play. The court therefore dismissed the disparate impact claim.
The Spencer case serves as a reminder that disparate claims are different from disparate treatment claims and that they should be dismissed if the claimant has not sufficiently identified them in the charge. Note as well that at the time of the court’s ruling the plaintiff’s remaining claims for disparate treatment remained pending and he was seeking class certification as to those claims. Thus, while the court’s ruling certainly limited the complaint, it was not the end to either the underlying claims or to the potential for class action treatment under another theory.
The bottom line: A claimant cannot rely on the EEOC to identify or investigate disparate impact claims that are not disclosed in the charge.