Checkmate: Unchecked boxes on EEOC charge form halt bias, retaliation claims

The U.S. 5th Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas) recently upheld the dismissal of a former employee’s sexual orientation discrimination and retaliation claims because he hadn’t exhausted administrative remedies with the Equal Employment Opportunity Commission (EEOC) before filing suit. Although he mentioned sex discrimination and retaliation in the EEOC intake questionnaire, he hadn’t checked the boxes on the agency's charge form, and his former employer hadn’t been put on notice of the claims. You should always consider whether an employee has properly and fully exhausted all claims, but keep in mind that charge-form boxes alone don’t always control an employee’s fate.

Employment history and termination

James Ernst, a self-described gay white man, began working for Texas Methodist Hospital System as a senior transportation analyst in 2013.

In 2016, the hospital received a complaint from a job applicant claiming Ernst had winked at him, suggestively grabbed and rubbed his own penis, and nodded to indicate the applicant should follow him around the corner to the men’s restroom. During an investigation, officials interviewed Ernst and several colleagues and reviewed surveillance footage, which corroborated at least parts of the applicant’s complaint.

During the initial interview, Ernst denied any sexual harassment but did admit he nodded to the applicant and may have “adjusted himself,” since he sometimes does so “subconsciously.” During a second interviewi, he provided some inconsistent and questionable responses, so the hospital terminated him.