Amicus Curiae Brief — Edelman v. Lynchburg College

| Suprume Court, U.S. |

FILED

Aus 30 200 auc 30 200

No. 00-1072 | CLERK

Jn the Supreme Court of the Cnited States

LEONARD EDELMAN, PETITIONER

LYNCHBURG COLLEGE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

PS. RALPH F. Boyb, JR.

Acting 1h puty General Counsel

PHILIP B. SKLOVER

Associate General Counsel

VINCENT J. BLACKWOOD

Assistant General Counsel

Assistant Attorne y Gren ral

PAUL D. CLEMENT

Deputy Solicitor General

PAUL R.Q. WOLFSON

Assistant to the Solicitor

BARBARA L. SLOAN General

Attorney

Equal Employment

Opportunity Commission

Washington, D.C. 20507

Department of Justice

Washington, D.C. 20530-0001

(202) 5 J 4-2217

QUESTION PRESENTED

Title VII of the Civil Rights Act of 1964 provides that a

charge of employment discrimination filed with the Equal

Employment Opportunity Commission (Commission or

EEOC) must be verified by the complainant under oath or

affirmation, 42 U.S.C. 2000e-5(b), and must be filed within

certain limitation periods, 42 U.S.C. 2000e-5(e)(1). An

EEOC regulation, 29 C.F.R. 1601.12(b), provides that a

discrimination charge that has been filed with the Com-

mission within the statutory limitation period may be

amended to cure “technical defects or omissions, including

failure to verify the charge,” and that an amendment to

verify the charge “will relate back to the date the charge was

first received” by EEOC, even if the verification of the

charge is made after the statutory limitation period for filing

a charge of discrimination. The question presented is

whether 29 C.F.R. 1601.12(b) is valid.

(I)

TABLE OF CONTENTS

Interest of the United States and the Equal Employment

Opportunity Commission

Argument:

The EEOC’s regulation providing that an otherwise

sufficient, timely-filed charge of discrimination may

be verified after the charge-filing period is valid and

reasonable

A. The text of Title VII does not require a charge

of discrimination to be verified within the

limitation period for filing a charge with EEOC ......

B. Background legal principles make clear that a

timely filed complaint ordinarily may be verified

after the limitation period for the complaint

has expired

C. The Commission's regulation is reasonable and

entitled to deference

Conciusion

TABLE OF AUTHORITIES

Cases:

Arrington v. Tupper, 10 Cal. 464 (1858) .........ccccccsereeeees

Armstrong v. Fernandez, 208 U.S. 324 (1908) ................

Becker v. Montgomery, 121 S. Ct. 1801 (2001) .................

Bellah, In re, 116 F. 69 (D. Del. 1902) ...........cccccccccescceeeeseeees

Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355 (6th

Cir. 1969) _

Board of Comm'rs v. Walter, 112 P. 599 (Kan.

1911)

Board of Educ. v. Mulcahy, 123 P.2d 114 (Cal. Dist.

Ct. App. 1942)

Callanan v. United States, 364 U.S. 587 (1961) ...............

(IID)

Page

“a =

IV

Cases—Continued: Page

Casavantes v. California State Univ., 732 F 2d 1441

(9th Cir. 1984) 7 20

Chandler v. Taylor, 12 N.W.2d 590 (lowa 1944) ............. 14

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984) . §,9,18

Chisholm v. Vocational Sch. for Girls, 64 P.2d 838

(Mont. 1936) 14, 16

Choate v. Caterpillar Tractor Co., 402 F.2d 357

(7th Cir. 1968) 20

City of Dayton v. Hirth, 87S.W. 1136 (Ky. 1905) ............ 15

Claussen v. Chapin, 221 P. 1073 (Mont. 1923) ................. 15

Colonial Storage Mgmt. v. Board of Revision, 679

N.E.2d 313 (Ohio Ct. App. 1996) 14-15

Commercial Bank & Trust Co. v. Jordan, 278 P.

832 (Mont. 1929) 14

Crist v. Tallman, 179 N.W. 522 (lowa 1920) 15

Decker v. Board of Educ., 380 A.2d 285 (NJ.

Super. Ct. App. Div. 1977), certification denied, 384

A.2d 842 (1978) 16

Decker v. West, 273 Ill. App. 532 (1934) 15

Delaware State Coll. v. Ricks, 449 U.S. 250

(1980) 22

Dinwiddie v. Board of County Comm'rs, 708 P.2d

1043 (N.M. 1985), cert. denied, 476 U.S. 1117 (1986) ....... 17

Drury Displays, Inc. v. Board of Adjustment,

760 S.W.2d 112 (Mo. 1988) 14, 15-16

Duran v. United States, 31 Ct. Cl. 353 (1896) .................. 16

Easter Seal Soc'y for Disabled Children v. Berry,

627 A.2d 482 (D.C. 1993) 14, 15

EEOC v. Associated Dry Goods Corp., 449 U.S. 590

(1981) 19, 20

EEOC v. Commercial Office Prods. Co., 486 U.S.

107 (1988) 4, 18, 19, 25

EEOC v. Shell Oil Co., 466 U.S. 54 (1984) ............. 21, 22,23

Estate of Shaffer, In re, 454 P.2d 1 (Kan. 1969) ................. 14

Cases—Continued: Page

Estate of Sessions, In re, 341 P.2d 512 (Or. 1959) ........ 14, 15, 16

Farthing, In re, 202 F. 557 (E.D.N.C. 1913) ....cccccceceececvees 16

Franzen v. EI. du Pont de Nemours & Co., 36 F.

I i es GD cereremmanneeemeccnmneemnnemnmeenes 16

Graves v. Needham, 39 N.E.2d 321 (Ill. 1942) .................. 15

Green River Deposit Bank v. Craig, 110 F. 137

Gea Ge GED censtreneeesremenmcionnemmenmeeencnm 16

Greene v. Union Pac. Stages, Inc., 45 P.2d 611

(Wash. 1935) 15, 16

Griffin v. United States, 13 Ct. Cl. 257 (1877) 0.2... 16

Griffith v Adams, 52 A. 66 (Md. 1902) 17

Harris v. Mills Novelty Co., 106 F.2d 976 (10th Cir.

1939) ....... 16

Hodges v. Northwest Airlines, Inc., 990 F.2d 1030

(8th Cir. 1993) 20

Industrial State Bank v. Engineering Serv. &

Equip., 612 S.W.2d 661 (Tex. Civ. App. 1981) ................. 15

Ingalls Shipbuilding Corp. v. Cahela, 36 So. 2d 513

(Ala. 1948) 15

Interest of L.D., In re, 398 N.W.2d 91 (Neb. 1986) ............ 14

Johnson v. Jones, 2 Neb. 126 (1872) 14

Johnston Broad. Co. v. FCC, 175 F.2d 351 (D.C. Cir.

1949) ....... 15, 16

Keister’s Ex'rs v. Philips’ Ex’x, 98 S.E. 674 (Va.

1919) 15

Kuykendall v. Lambert, 173 P. 657 (Okla. 1918) .............. 15

Lattimer v. Ryan, 20 Cal. 628 (1862) .........cccccccecsecsesesneenees 15

Leidigh Carriage Co. v. Stengel, 95 F. 637 (6th Cir.

1899) 16

Lewis v. Connett, 291 F. Supp. 583 (W.D. Ark. 1968) ..... 16

Lewis v. Erie Ins. Exch., 421 A.2d 1214 (Pa. Super.

Ct. 1980) 15

Vil

VI

Cases—Continued: Page Cases—Continued: Page

Lincoln Nat'l Bank v. Mundinger, 528 N.E. 2d 829 State ex rel. Williams v. Jones, 164 S.W.2d 823

Clndh. C2. Disney. RODD ceceeecccacescnsesnsznsscsscsnssnsssnsensssnssssensessssnees 14, 15 Ee ae 15, 16

Love v. Pullman Co., 404 U.S. 522 (1972) ..occcssesssssseeeeee 18 ae Stoltman, 429 N.W 2d 220 (Mich. Ct

Sate ski ‘ ights ' I TERED connmscssssscnessnsssssncesesumenemesenggeaanansenmnesamanesmnemnaes 14

a (Ill. A any i rapist — ee 15 Tehansky v. Wilson, 428 P.2d 375 (Nev. a 14

MeMath v _* 2 N.W. 703 (Minn. 1879) 14 Tinsley v. First Union Nat'l Bank, 155 F.3d 435

. Parsons, W. Minn. 1879) .............0++ ~~ Ae ~ eps mates eas yoni ;

“aan ee er 15 Tracy v. Robbins, 40 F.R.D. 108 (D.S.C. 1966),

Miller v. Beard of Accesses, 698 N.E.2d 906

appeal dismissed, 373 F.2d 13 (4th Cir. 1967) ...........00000. 16

United Farm Workers of Am. v. Agricultural

(N.Y. 1997) 7 14 :

Labor Relations Bd., 694 P.2d 138 (Cal. 1985) ................ 15

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) .sccsccsesn 17 inetiine . tales eekaee 14,1

Morissette v. United States, 342 U.S. 246 (1952) ............. 13 anes . ; . Ct. 2

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979) ........... 18 IO) svveereeverereeeresersrrrernnnnnnsnnnnnnnnnnnnnnenecovecesesssssesesseneseeesesseetnten

Patterson v. Patterson, 190 P.2d 887 (Kan. 1948) .......... 14 wo cena - Pree aa Houseboat, a

People v. Birch Sec. Co., 196 P.2d 143 (Cal. Dist. emetinene @ tied . - ~~ eee

Ct. App. 1948), cert. denied, 336 U.S. 936 (1949) ........ - Amount of $108,387.27, 863 F 2d 555 (7th Cir.

People ex rel. New York City Omnibus Corp. v. 1988) -

Miller, 24 N.E.2d 722 (N.Y. 1939) 14, 15 .

Peterson v. City of Witchita, 888 F 2d 1307 (10th “ae of Montgomery, 240 F.3d 905 (11th "

ene ‘Temple & aesnoat ~entooerend —_ Vater v. Vater’s Adm'rs, 113 S.W.2d 1145 (Ky. 1938) ..... 15

Preparatory Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d

People, Inc. v. Seery, 195 A.2d 900 (NJ. Super. 29 t Cie. tam -

Ct. Ch. Div. 1963) 14 ae ee Le eee ee eee eed

Pulliam v. Pulliam, 183 P.2d 220 (Kan. 1947) ......000.0000 15 hee _* Workman, 46 N.E.2d 718 (Ind. Ct. re

Reno v. Koray, 515 U.S. 50 (1995) 19 > seseesennenansencnnnnnnecgncennnnneenennnncenessnnnnnnneetes ‘

Robbins, In re, 292 F. 653 (S.D. Fla. 1923) 16 gi 1p rnelmigcraae ‘

RgtCre NiabaeD Cap, oe, Heres Zipes v. Trans World Airlines, Inc., 455 U.S. 385

539 (7th Cir. 1947) 16 (1982) , , -

Rush v. Rush, 46 lowa 648 (1877) 14, 15 |

Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455 Statutes, regulations, executive order and rules:

(8th Cir. 1998) 20 Act of Mar. 3, 1887, ch. 359, § 5, 24 Stat. 506 13

Smith v. Meyers, 253 P.2d 615 (Ariz. 1953) 15 Act of Mar. 3, 1911, ch. 231, $ 159, 36 Stat. 1189 ..........o.0 14

Southside Civic Ass'n v. Warrington, 635 So. 2d Administrative Procedure Act , 5 U.S.C. 553(b)(A) 0.0.00... 19

721 (La. Ct. App.), petition for writ denied, 639 So. 2d Age Discrimination in Employment Act of 1967, 29

1168 (La. 1994) 15 U.S.C. 626(d) 10

State v. Beach, 103 A. 353 (Del. Super. Ct. 1918) ............. 15

VIII

Statutes, regulations, executive order and rules—Continued: Page

Americans with Disabilities Act of 1990, Tit. I, 42

CBD. BBBER CO GID, ccccsccscsassesssesssscscscscssssessssscesesssessstssssnesenss 1,2, 21

GEA, GGG cncnnmnnmmnnmmnmnne 2

Bankruptcy Act of 1898, ch. 541, § 18(c), 30 Stat. 551 ........ 13, 16

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

6 BOE, ccrccnsscsccssnscssecesemesensetiees seassscsnssascscssnnescanesesuensss passim

9 FEB, GB WERE, GOD cccccssnscseszssnsssssesescssscscsesessemccsesssces 10

§ 703(a)(1), 42 U.S.C. 2000e-2(a)(1) pasneetientinantettenmanienes 3

§ 706(a), 42 U.S.C. 2000@-5(a) (1970) ........ececceseseenenenenees 20

§ 706(b), 42 U.S.C. 20000-5(b) (1972) ......cccccceversnerererenes 20

§ 706(b), 42 U.S.C. 2000e-5(b) ... 1, 5, 7, 9, 10, 11, 20, 21, 22

§ 706(c), 42 U.S.C. 2000€-5(C) .......cereerereenenereeneneneenenenenees 25

§ 706(e), 42 U.S.C. 2000€-5(e) ......cccccssreeserenenennes 1, 10, 11, 20

§ 706(e)(1), 422 U.S.C. 2000@-5(€)(1) .....cccccccesesesereeneeneesees 4,6,7

§ 713, 42 U.S.C. 2000]-12(8) ......0.cscscsrsssrsreecesssersssrsoseessees 2,18

BB DRG. GERI ccnsnsscnncensnsensscennscsnsensssesezssnserssensssesssssssse 13

BD WAAL, GR ID ccnenenssssesescsnsaressnssssssscecsscscessessnessccssscscsscsnese 13-14

28 U.S.C. 762 (1925) a 13

28 U.S.C. 1446 (1994 & Supp. V 1999) .......ccccvereseseseseenenes 14

22 Va. Admin. Code (1990):

OE BD ccccsansessesssszsznsessssssesnszscssnsscerecescssscsssscsssssmsssnsenanes 25

DE BSD cccsssnsesnnsseccsasscescscesscessssscscssscssnsssesescassesnsnsssssseens 25

Exec. Order No. 11,246 ieeeneames 25

31 Fed. Reg. 10,269 (1966) ...........scsessesnesnesessneenssesnsneenensenens 19

37 Fed. Reg. 9215 (1972) ............rsvessersersssessersesssssssssssssessesessess 19

42 Fed. Reg. 55,388 (1977) ............cscscsscsssssssssssssssesssesssesssensesees 19

29 C.F.R.:

eerie BREE GERD cencscntensccennsatetntensersesssassstetnensstemesnesets 19

Bestia 1GG1.1DA) ...22220.0.c.c-ccccccscccsesesesesscsesesesssssnscscsssoscsceseees 12

Section 1601.12(D) .........csessessessesseesneeneeneennenns 2, 4, 12, 19, 21, 23

Section 1601.13(a)(3)-(4) sensenermsesenesomnes 4

Section 1601.13(a)(4)(i) .......cccrecsessernsseeneeneenenesrensseensneeneneenens 25

Bestia BOBE.BILE) .ncccccccccscccescscccescscecesescccosssvccsssccesscesssscsseseses 4

Section 1601.74(a) .......ccsssssessesesesssneensssensesensnenssessesernenenes 4

GB Ger ei GIB canccsesspsecesssssnssensssnsnsscsznsssesessenscsssssssomsssssssssssses 25

Fed. R. App. P:

ee sqpuneasnnasnansnansgusnscsntesnanssensesnsssess 11

Rule 4 - sussenseepenenasenusensuccensnanensetenmsesesses 11

IX

Regulation and rules—Continued:

Fed. R. Civ. P.:

28 U.S.C. App. Supp. R.:

ee

Miscellaneous:

Clark, Charles E., Handbook of the Law of Code Plead-

| ____ ESeeee e

49 C.J. (1930)

SOC EE EEE EEE EEE EEE EEE EEE EERE EEE EEEEE EEE EEEEH EEE HOES

-

Jn the Supreme Court of the United States

No. 00-1072

LEONARD EDELMAN, PETITIONER

Vv.

LYNCHBURG COLLEGE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

The Equal Employment Opportunity Commission (Com-

mission or EEOC) has primary responsibility for administer-

ing and enforcing Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e et seqg., and Title I of the Americans with Dis-

abilities Act of 1990 (ADA), 42 U.S.C. 12111 et seg. The

Attorney General also has enforcement responsibilities

under Title VII and the ADA with respect to public em-

ployment. Enforcement of both statutes depends on the

timely filing of a charge of discrimination, and both statutes

require that a charge of discrimination be in writing and

under oath or affirmation. See 42 U.S.C. 2000e-5(b) (verifi-

cation requirement under Title VII); 42 U.S.C. 2000e-5(e)

(1)

(time limits for filing charges under Title VII); 42 U.S.C.

12117 (ADA incorporates Title VII’s procedural provisions).

In 1966, pursuant to its statutory authority to issue “suit-

able procedural regulations to carry out the provisions of

[Title VII],” 42 U.S.C. 2000e-12(a), EEOC promulgated a

regulation providing that “technical defects or omissions,

including failure to verify,” in an otherwise sufficient, timely-

filed charge may be cured by amendment outside the

statutory limitation period, and that “[s]uch amendments

* * * will relate back to the date the charge was first

received.” 29 C.F.R. 1601.12(b). The court of appeals in this

case invalidated that EEOC regulation and held, to the con-

trary, that a charge of discrimination must be dismissed

unless it has been both filed and verified within the limita-

tion period.

The Commission has an obvious interest in the validity of

its regulation. In addition, under Title VII and Title I of the

ADA, the Commission and the Attorney General cannot take

enforcement action on a discrimination charge unless it has

been timely filed, and so the court of appeals’ decision

directly affects their ability to enforce those statutes. The

United States and EEOC filed an amicus curiae brief in this

case at the petition stage in response to the Court’s order

inviting the Solicitor General to express the views of the

United States.

STATEMENT

1. On June 6, 1997, respondent, a private college, denied

tenure to petitioner, a biology professor, despite favorable

recommendations from the chair of his department and a

faculty committee. Pet. App. 2a. On November 14, 1997 (160

days later), petitioner sent a detailed letter to EEOC, alleg-

ing that respondent denied him tenure because of his sex,

and that respondent’s dean was systematically purging

white men from the faculty. Pet. 2; Br. in Opp. 2. Petitioner

ended the letter by stating: “I hereby file a charge of em-

ployment discrimination against [respondent] * * * and I

call upon the EEOC to investigate this case in an attempt to

rectify this unjust and unfair situation before any more

people are subjected to this illegal discrimination.” C.A.

App. 85-86. The letter was signed by petitioner, but was not

executed under oath or affirmation. Jd. at 86; Pet. App. 4a.

On Navember 26, 1997, petitioner’s attorney wrote to

EEOC, stating that petitioner “would like to have a personal

interview with an EEOC investigator prior to the final

charging documents being served on the college.” Pet. App.

2a. That letter added that “(i]t is my understanding that

delay occasioned by the interview will not compromise the

filing date, which will remain as November 14, 1997. Please

advise if my understanding in this regard is not correct.”

Ibid.

On December 3, 1997, an EEOC employee sent petitioner

a form letter, without acknowledging his attorney’s corre-

spondence. The form letter stated that petitioner should

telephone EEOC to arrange an interview. Petitioner’s inter-

view was eventually scheduled for March 3, 1998. After the

interview, an EEOC employee drafted an EEOC Form 5

Charge of Discrimination and mailed it to petitioner on

March 18, 1998, for petitioner’s review and verified signa-

ture. The EEOC received the verified charge back from

petitioner on April 15, 1998, 313 days after the last alleged

discriminatory employment practice. On March 26, 1999,

after completing its investigation, EEOC issued petitioner a

notice of right to sue. Pet. App. 2a-3a.

2. Petitioner initially filed suit against respondent in

Virginia state court and alleged various state-law claims. He

later added a count alleging sex discrimination in violation of

Title VII, 42 U.S.C. 2000e-2(a)(1). Respondent removed the

action to federal district court and then moved to dismiss the

Title VII claim on the ground that petitioner had failed to

file a valid charge of discrimination with EEOC within the

applicable statutory limitation period. Pet. App. 3a.

Respondent argued that a “charge” was not filed until

EEOC received the verified Form 5 Charge on April 15,

1998, after the expiration of the applicable 300-day limitation

period for filing a Title VII charge. See 42 U.S.C. 2000e-

5(e)(1).' Petitioner contended that his initial letter of

November 14, 1997, complaining of discrimination was a

timely charge of discrimination and that, under an EEOC

regulation, 29 C.F.R. 1601.12(b), his subsequent verification

(on the Form 5 charge) related back to that date. Although

respondent acknowledged that regulation, it argued, inter

alia, that the regulation conflicted with the underlying

statute. See Br. in Opp. 5 n.1.

Without questioning the validity of the EEOC regulation,

the district court agreed with respondent that petitioner had

1 The basic limitation period for filing a Title VII discrimination

charge with EEOC is 180 days after the unlawful employment practice. 42

U.S.C. 2000e-5(e)(1). If the charging party has filed a discrimination

charge with a qualified state or local agency, then the statutory limitation

period for filing a charge with EEOC is 300 days. 42 U.S.C. 2000e-5(e)(1).

(Such state and local agencies are commonly referred to as “deferral”

agencies. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 112

(1988); Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 439-442 (4th Cir.

1998).) In addition, if a complainant submits a charge of discrimination to

EEOC based on employment practices that occurred in a State or locality

that has a “deferral” agency, the 300-day limitations period applies and the

EEOC refers the discrimination charge to the appropriate state or local

agency for processing, even if the complainant has not filed a

discrimination complaint directly with that state or local agency. See 29

C.F.R. 1601.13(a)(3)-(4) and (c); Tinsley, 155 F.3d at 439. Virginia has such

a deferral agency, the Virginia Council on Human Rights (VCHR). See 29

C.F.R. 1601.74(a); Tinsley, 155 F.3d at 440. A worksharing agreement

between EEOC and VCHR provides that EEOC’s receipt of charges on

VCHR’s behalf is deemed to “automatically initiate the proceedings of

both EEOC and [VCHR]” for purposes of fulfilling Title VII’s deferral

requirements. C.A. App. 118.

rs aS

a |

failed to file a timely charge, dismissed petitioner's Title VII

claim, and remanded the remainder of the case to state

court. Pet. App. 16a-17a. Although the district court noted

that petitioner initially wrote to the Commission to complain

about employment discrimination by respondent on Novem-

ber 14, 1997, and that his attorney wrote to the Commission

on November 26, 1997—both dates well within the 300-day

limitation period—it concluded that “neither [petitioner] nor

the EEOC proceeded as if the November 1997 letter[s] did,

or were intended to, commence proceedings.” Jd. at 22a-23a.

3. The court of appeals affirmed, but the panel was

divided in its reasoning. Pet. App. la-13a (majority); id. at

14a-15a (concurrence).

a. The majority did not take issue with petitioner’s sub-

mission that, under the Commission’s regulations, EEOC

would have treated his initial, non-verified letter as a charge

of discrimination. It concluded, however, that EEOC’s regu-

lation permitting the verification to relate back to the filing

of the initial complaint is contrary to the statute and there-

fore invalid. Pet. App. la-2a.

The majority applied the framework for review of agency

regulations established in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-843

(1984). Pet. App. 5a. Identifying “(t]he precise question at

issue in this case” as “whether verification must occur within

the statutory limitations period,” the court ruled that “Con-

gress has unambiguously spoken” on that question. Jd. at 6a.

The court noted that Section 706(b) of Title VII, 42 U.S.C.

2000e-5(b), specifies that “[cJharges shall be in writing under

oath or affirmation and shall contain such information and be

in such form as the Commission requires.” The “plain mean-

ing of this language,” stated the court, “compels the con-

clusion that if a discrimination claim is not in writing, under

oath or affirmation, containing the information and in the

6

form required by the Commission, it is not a charge.” Pet.

App. 6a.

In addition, the court stated that Section 706(e)(1) of Title

VII, 42 U.S.C. 2000e-5(e)(1), “affirmatively and plainly

establishes the time period within which a charge must be

filed.” Pet. App. 6a. Thus, the court concluded, “(bJjecause a

charge requires verification [and] because a charge must be

filed within the limitations period, it follows that a charge

must be verified within the limitations period.” bid.

(citations omitted). Because it found that the statutory

language resolved the matter at hand, the court rejected

petitioner’s argument that EEOC’s regulation is entitled to

deference. /bid.

b. Judge Luttig concurred only in the judgment. Pet.

App. 14a-15a. He would have affirmed the dismissal of peti-

tioner’s claim on a narrower ground similar to that relied on

by the district court—namely, that petitioner did not intend

his initial letter to the Commission to be treated as a charge

of discrimination. Jd. at 14a.”

Judge Luttig stated that he was “sufficiently uncom-

fortable” with the broader ground relied on by the majority

—that “verification may never relate back” after expiration

of the limitation period—that he was unable to concur in that

ruling. Pet. App. 14a. He noted that “we are not confronted

with a single statute stating either by terms or in effect that

‘a verified charge must be filed within [300] days of a dis-

criminatory action.” Jbid. Rather, he observed, “we are

presented with two statutes, the first providing that a

charge shall be filed within [300] days of the unlawful em-

ployment practice, and the second providing that charges

2 If the case is remanded, as we suggest below, respondent would be

free to pursue its alternative argument that petitioner did not intend his

initial letter to the Commission to be a “charge.” See p. 5, supra; but see

pp. 2-3, supra.

shall be in writing and include an oath or affirmation.” [bid.

He further noted that “there is not necessarily the nexus

required” between those two statutes to sustain the ma-

jority’s reading. [bid. “[(I]f the two statutes are so read as

temporally independent of each other, or at least not tempo-

rally coterminous, then there is no statutory requirement

that the charge be verified within the [300] days, and re-

lation back would be available by regulation.” /bid.

Finally, Judge Luttig observed, “there is no statutory

definition of ‘charge’” in Title VII. Pet. App. 14a-l5a.

Therefore, he continued, “the ‘charge’ that must be filed

within [300] days need not—at least need not by

definition—be an allegation that is verified * * * . Insofar

as the statute informs us, the ‘charge’ that must be filed

within [300] days can be merely an allegation of discrimi-

nation; it need not be verified.” Jd. at 15a. Accordingly,

because he did not find EEOC’s regulation to be contrary to

anything in the statute, he would have upheld that regu-

lation. [bid.

SUMMARY OF ARGUMENT

The EEOC regulation at issue in this case validly permits

the Commission to take action on a verified charge of dis-

crimination under Title VII as long as the charge is sub-

mitted to the Commission within the limitation period for

filing charges, even if the verification occurs after that

period has expired. Although Title VII requires allegations

in a charge of discrimination to be made “under oath or affir-

mation,” 42 U.S.C. 2000e-5(b), and also imposes time limits

for the filing of charges with EEOC, see 42 U.S.C.

2000e-5(e)(1), it does not expressly require verification

within the limitation period for filing charges, nor does it

provide express time limits for verification. The two

provisions address distinct aspects of the charge-filing pro-

cess and do not incorporate each other by reference. Accord-

8

ingly, the court of appeals erred in concluding that the

statute unambiguously requires verification to occur within

the time limits for filing a charge.

The regulation reflects well-established background legal

principles. Federal and state courts have consistently ruled

that, even when a complaint must be verified, as long as the

complaint is timely filed, it may be verified after the expira-

tion of the limitation period for the complaint. Nothing in

Title VII suggests that Congress intended to depart from

that principle, which was firmly established by the time of

the statute’s enactment in 1964.

The Commission’s regulation is reasonable and entitled to

deference. The regulation is not only consistent with the

common law rules governing verified complaints, it also

reasonably accommodates the purposes of the charge,

verification, and limitation provisions of Title VII. Because

the Commission may not enforce Title VII against an em-

ployer without a verification, the regulation accommodates

the employer’s interest in avoiding frivolous complaints.

Because the complaint must be filed with EEOC within the

limitation period, it accommodates the employer’s interest in

avoiding stale charges. At the same time, the regulation

recognizes that most individuals who complain to the Com-

mission are laypersons who will not know of the verification

requirement. The regulation thus ensures that EEOC can

enforce Title VII and that individuals do not inadvertently

lose their rights but also protects employers against merit-

less and stale claims.

ARGUMENT

THE EEOC’S REGULATION PROVIDING THAT AN

OTHERWISE SUFFICIENT, TIMELY-FILED CHARGE

OF DISCRIMINATION MAY BE VERIFIED AFTER THE

— PERIOD IS VALID AND REASON-

A. The Text Of Title VII Does Not Require A Charge Of

Discrimination To Be Verified Within The Limitation

Period For Filing A Charge With EEOC

The issue in this case is whether an otherwise valid charge

of discrimination must be verified by the complainant within

the limitation period for filing a complaint. As always, the

first question is “whether Congress has directly spoken to

the precise question at issue.” Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

The court of appeals concluded that Congress had expressly

provided that a charge must be verified within the limitation

period for filing charges with the Commission. That con-

clusion is erroneous.

Section 706(b) of Title VII provides that “[cJharges shall

be in writing under oath or affirmation and shall contain such

information and be in such form as the Commission re-

quires.” 42 U.S.C. 2000e-5(b). The court of appeals read

Section 706(b) to provide that only a charge made under oath

or affirmation can be a valid “charge.” According to the

court of appeals, Section 706(b) effectively defines the word

“charge” in Title VII to mean only a document executed

under oath or affirmation. As the court of appeals put the

matter, the “plain meaning” of Section 706(b) “compels the

conclusion that if a discrimination claim is not in writing,

under oath or affirmation, containing the information and in

the form required by the Commission, it is not a charge.”

Pet. App. 6a. Under the court of appeals’ reading, therefore,

10

a written complaint of discrimination that was filed with

EEOC within the time limits and that otherwise complies

with EEOC regulations is not a “charge” if it was not veri-

fied within those time limits.

The statute, however, does not define the term “charge”

to mean only a complaint made under oath or affirmation.

Indeed, as Judge Luttig pointed out (Pet. App. 14a-15a),

Title VII does not contain a definition of “charge” at

all—even though, in a separate definitional section, 42 U.S.C.

2000e, it expressly defines several other terms—and a

“charge” can mean simply “an allegation of discrimination.”

Although Section 706(b) provides that “(cJharges shall be in

writing under oath or affirmation,” that requirement is not

framed as a definition; it does not state that the word charge

“means” or “is” a document in writing under oath or

affirmation. Rather, it directs that something that is a

charge be sworn to or affirmed.

The panel majority inferred a close nexus between Section

706(b), which contains the verification requirement for

charges, and Section 706(e), 42 U.S.C. 2000e-5(e), which sets

forth the limitation periods for filing charges. Section 706(e)

provides that, in deferral states such as Virginia (see note 1,

supra), a charge “shall be filed [with EEOC] * * * within

three hundred days after the alleged unlawful employment

practice occurred.” 42 U.S.C. 2000e-5(e).

The two provisions, however, address separate require-

ments in the charge-filing process, and neither incorporates

the other by reference. Section 706(b), which contains the

verification requirement, does not refer to the time limits in

Section 706(e), and Section 706(e) is silent as to whether the

“charge” that must be filed within 300 days of the alleged

discriminatory act must also be verified at the time of filing.

While there is a statute of limitations for filing a charge,

there is simply no statute of limitations for verification. As

Judge Luttig observed (Pet. App. 14a), the statute does not

een On

11

state either in express terms or in effect that “a verified

charge must be filed within [300] days of a discriminatory

action.”

This court rejected a similar effort to superimpose Section

706(e)’s time limits on a separate provision of Title VII in

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-394

(1982). In Zipes, this Court refused to read Section 706(c)’s

timely-filing requirement as a jurisdictional prerequisite for

purpose of Title VII’s jurisdictional provision, Section 706(f).

As the Court explained, the latter provision, “contains no

reference to the timely-filing requirement. The provision

specifying the time for filing charges with the EEOC

appears as an entirely separate provision, and it does not

speak in jurisdictional terms or refer in any way to the

jurisdiction of the district courts.” bid.

The court of appeals’ approach to Sections 706(b) and (e)

likewise resembles the method of statutory interpretation

that this Court rejected last Term in Becker v. Montgomery,

121 S. Ct. 1801 (2001). In Becker, the Sixth Circuit concluded

that a timely notice of appeal was ineffective because it was

not signed by the party or his attorney, as required by

Federal Rule of Civil Procedure 11(a), within the juris-

dictional time period for filing a notice of appeal. The court

of appeals held that the omission of the signature could not

be corrected after that time period had expired. Jd. at 1804-

1805. This Court rejected the argument that, because Civil

Rule 11(a) requires all papers filed in district court (including

notices of appeal) to be signed, an unsigned notice of appeal

was ineffective to meet the jurisdictional requirements gov-

erning notices of appeal in Federal Rules of Appellate Pro-

cedure 3 and 4. This Court declined to “dislodge the signa-

ture requirement from its Civil Rule 11(a) moorings and

make of it an Appellate Rule 3 jurisdictional specification.”

Id. at 1807. Rather, the Court concluded that, although both

Civil Rule 11(a) and the Appellate Rules set forth mandatory

12

requirements for notices of appeal, those Rules do not, either

singly or in combination, provide “that the signature require-

ment cannot be met after the appeal period expires.” /d. at

1805. To the contrary, the Court held, “if the notice [of

appeal] is timely filed and adequate in other respects,

jurisdiction will vest in the court of appeals, where the case

may proceed so long as the appellant promptly supplies the

signature once the omission is called to his attention.” /d.

at 1804.

Just as the Civil Rules do not provide a time limit for

signatures, Title VII does not specify a time limit for verifi-

cation. The EEOC’s regulation fills that gap. That regu-

lation first sets forth requirements for a charge of discrimi-

nation, including that the charge contain information iden-

tifying the complainant and the respondent, a statement of

the pertinent facts, and other information. See 29 C.F.R.

1601.12(a). The regulation then specifies the minimum infor-

mation that a charge must contain to vest jurisdiction in the

Commission—namely, that a charge will be sufficient “when

the Commission receives from the person making the charge

a written statement sufficiently precise to identify the par-

ties, and to describe generally the action or practices com-

plained of.” 29 C.F.R. 1601.12(b). The regulation further

provides that “{a] charge may be amended to cure technical

defects or omissions, including failure to verify the charge,”

and that “{[sJuch amendments * * * will relate back to the

date the charge was first received.” Jbid. Thus, as with the

Rules this Court examined in Becker, the EEOC regulation

sets forth minimum requirements for a “charge” sufficient to

vest the Commission with authority over the case, and then

provides that other requirements for a charge may be

supplied after the limitation period has expired.

13

B. Background Legal Principles Make Clear That A

Timely-Filed Complaint Ordinarily May Be Verified

After The Limitation Period For The Complaint Has

Expired

The court of appeals’ conclusion that a charge of discrimi-

nation must be verified within the limitation period for filing

charges is not only unsupported by the text of Title VII and

contrary to EEOC’s gap-filling regulation, but it is also con-

trary to well-settled background legal principles articulated

in dozens of state and federal decisions both before and after

Congress enacted Title VII. Those decisions establish that,

even when a complaint or other court filing must be verified,

verification may occur after the limitation period for the

complaint has expired, as long as the unverified complaint

was filed in time. Congress, a “lawyers’ body” (Callanan v.

United States, 364 U.S. 587, 594 (1961)), is presumed to have

been aware of that well-settled law when it enacted Title

VII. Cf. Morissette v. United States, 342 U.S. 246, 262-263

(1952). Accordingly, Title VII is most naturally read to

incorporate this judicial rule into the administrative context

of EEOC proceedings. At a minimum, EEOC’s regulation,

incorporating the common law rule, is entitled to deference.

See pp. 18-26, infra.

In modern practice under the Federal Rules of Civil Pro-

cedure and most corresponding state rules, pleadings gener-

ally need not be verified or accompanied by an affidavit,

except when “specifically provided by rule or statute.” Fed.

R. Civ. P. 11(a). However, verification requirements were

common in state proceedings through the first half of the

twentieth century, especially in States that followed the

Field Code’s requirement of verified complaints. See

Charles E. Clark, Handbook of the Law of Code Pleading

216-218 (2d ed. 1947). In those state proceedings and in the

few instances in federal practice where verification has been

14

required, courts consistently held that the absence of veri-

fication was a technical defect that could be cured outside

the limitation period and did not deprive the court of juris-

diction to act.*

The traditional function of verification is to assure the

truthfulness of the factual allegations contained in a plead-

ing. See, e.g., Drury Displays, Inc. v. Board of Adjustment,

760 S.W.2d 112, 114 (Mo. 1988) (en banc) (citation omitted).

As the courts have explained, however, the verification is

not itself an allegation or a part of the pleading.’ Thus, even

when a court’s jurisdiction depends on certain facts or allega-

tions, verification of those facts or allegations is not neces-

sary to vest jurisdiction in the court. Omission of or errors

3 As pertinent here, verification was previously required in the

federal system for involuntary bankruptcy petitions (see 11 U.S.C. 41(c)

(1925); Bankruptcy Act of 1898, ch. 541, § 18(c), 30 Stat. 551), in suits for

money against the United States brought in district court (see 28 U.S.C.

762 (1925); Act of Mar. 3, 1887, ch. 359, § 5, 24 Stat. 506), and for petitions -

tor recovery of damages filed in the Claims Court (see 28 U.S.C. 265

(1925); Act of Mar. 3, 1911, ch. 231, § 159, 36 Stat. 1139)). Verification is

still required in the federal system in shareholder derivative actions (see

Fed. R. Civ. P. 23.1), in support of an ex parte request for a temporary

restraining order (see Fed. R. Civ. P. 65(b)), in certain in rem actions, in-

cluding forfeiture actions (see 28 U.S.C. App., Supp. Rules C(2)(a) and

C(6)(a)(i)), and for removal of actions from state courts (see 28 U.S.C. 1446

(1994 & Supp. V 1999)).

4 See, e.g., McMath v. Parsons, 2 N.W. 703, 704 (Minn. 1879); Jn re

Estate of Sessions, 341 P.2d 512, 517 (Or. 1959); accord Jn re Estate of

Shaffer, 454 P.2d 1, 3 (Kan. 1969); Chisholm ». Vocational Sch. for Girls,

64 P.2d 838, 842 (Mont. 1936); In re Interest of L.D., 398 N.W.2d 91, 98

(Neb. 1986).

5 See, eg., United Farm Werkers of Am. v. Agricultural Labor

Relations Bd., 694 P.2d 138, 139-140 (Cal. 1985) (en banc); People v. Birch

Sec. Co., 196 P.2d 143, 146 (Cal. Dist. Ct. App. 1948), cert. denied, 336 U.S.

936 (1949); Easter Seal Soc’y for Disabled Children v. Berry, 627 A.2d 482,

489 (D.C. 1993); Lincoln Nat'l Bank v. Mundinger, 528 N.E.2d 829, 836

(Ind. Ct. App. 1988); Workman v. Workman, 46 N.E.2d 718, 724 (Ind. Ct.

15

in a required verification are technical defects that may be

remedied at any time before final judgment, and objection to

the lack of verification may be waived if not raised

promptly. Accordingly, verification may be supplied by

App. 1943) (en banc); Chandler v. Taylor, 12 N.W.2d 590, 594 (Iowa 1944);

Rush v. Rush, 46 lowa 648, 650-651 (1877); In re Estate of Shaffer, 454

P.2d at 3; Patterson v. Patterson, 190 P.2d 887, 889 (Kan. 1948); Stoltman

v. Stoltman, 429 N.W.2d 220, 222 (Mich. Ct. App. 1988); Commercial Bank

& Trust Co. v. Jordan, 278 P. 832, 834 (Mont. 1929); In re Interest of L.D.,

398 N.W.2d at 98; Johnson v. Jones, 2 Neb. 126, 135-137 (1872); Tehansky

v. Wilson, 428 P.2d 375, 375 (Nev. 1967) (per curiam); Preparatory Temple

& House of Prayer for all People, Inc. v. Seery, 195 A.2d 900, 902-903 (N.J.

Super. Ct. Ch. Div. 1963); Miller v. Board of Assessors, 698 N.E.2d 906,

908 (N.Y. 1997); People ex rel. New York City Omnibus Corp. v. Miller, 24

N.E.2d 722, 723 (N.Y. 1939); Colonial Storage Mgmt. v. Board of Revision,

679 N.E.2d 313, 314 (Ohio Ct. App. 1996); In re Estate of Sessions, 341

P.2d at 516.

6 Johnston Broad. Co. v. FCC, 175 F.2d 351, 355 (D.C. Cir. 1949)

(“Generally speaking, it seems to be held in the state courts that a

statutory requirement for a verified pleading is not jurisdictional but can

be waived by the opposing party or cured by amendment.”); see also

Ingalls Shipbuilding Corp. v. Caheia, 36 So. 2d 513, 518 (Ala. 1948); Smith

v. Meyers, 253 P.2d 615, 617 (Ariz. 1953); United Farm Workers, 694 P.2d

at 140; Lattimer v. Ryan, 20 Cal. 628, 633 (1862); Arrington v. Tupper, 10

Cal. 464, 464-465 (1858); Board of Educ. v. Mulcahy, 123 P.2d 114, 118

(Cal. Dist. Ct. App. 1942); State v. Beaci:, 103 A. 353, 353 (Del. Super. Ct.

1918); Mellon Bank, N.A. v. Coppage, 253 S.E.2d 202, 203 (Ga. 1979);

Decker v. West, 273 Ill. App. 532, 536-538 (1934); Workman, 46 N.E.2d at

724; Crist v. Tallman, 179 N.W. 522, 524 (lowa 1920); Rush, 46 lowa at

651; Pulliam v. Pulliam, 183 P.2d 220, 222 (Kan. 1947); Board of Comm'rs

v. Walter, 112 P. 599, 600 (Kan. 1911); Vater v. Vater’s Adm’rs, 113 S.W.2d

1145, 1146-1147 (Ky. 1938); City of Dayton v. Hirth, 87 S.W. 1136, 1137

(Ky. 1905); Drury Displays, 760 S.W.2d at 114; Claussen v. Chapin, 221 P.

1073, 1075 (Mont. 1924); Miller, 24 N.E.2d at 723-724; Kuykendall v.

Lambert, 173 P. 657, 658 (Okla. 1918); Estate of Sessions, 341 P.2d at 517;

Lewis v. Erie Ins. Exch., 421 A.2d 1214, 1217 (Pa. Super. Ct. 1980); State

ex rel. Williams v. Jones, 164 S.W.2d 823, 826 (Tenn. 1942); Industrial

State Bank v. Engineering Serv. & Equip., 612 S.W.2d 661, 663 (Tex. Civ.

16

later amendment and will relate back to the original

unverified complaint.’

Federal courts have likewise held that, where verification

is required by statute or rule, it may be supplied by

amendment and will relate back to the original, unverified

pleading.’ For example, Section 18(c) of the Bankruptcy Act

of 1898, ch. 541, 30 Stat. 551, required the vertification of all

averments of fact in involuntary bankruptcy petitions. The

federal courts uniformly held that failure to verify the facts

in the petition was a non-jurisdictional, curable defect.’ This

App. 1981); Keister’s Ex'rs v. Philips’ Ex'z, 98 S.E. 674, 675 (Va. 1919);

Greene v. Union Pac. Stages, Inc., 45 P.2d 611, 612-613 (Wash. 1935).

7 See Cahela, 36 So.2d at 518; United Farm Workers, 694 P.2d at 140;

Easter Seal Society, 627 A.2d at 489; Graves v. Needham, 39 N.E.2d 321,

322 (Ill. 1942); Maliszewski v. Human Rights Comm'n, 646 N.E.2d 625,

626-628 (Ill. App. Ct. 1995); Mundinger, 528 N.E.2d at 836; Workman, 46

N.E.2d at 724; Pulliam, 183 P.2d at 222; Hirth, 87 S.W. at 1137; Southside

Civic Ass'n v. Warrington, 635 So.2d 721, 723-724 (La. Ct. App.), petition

for writ denied, 639 So. 2d 1168 (La. 1994); Drury Displays, Inc., 760

S.W.2d at 114; Chisholm, 64 P.2d at 842; In re Estate of Sessions, 341 P.2d

at 517; State ex rel. Williams, 164 S.W.2d at 826; Greene, 45 P.2d at 612;

see also Decker v. Board of Educ., 380 A.2d 285, 286-287 (N.J. Super. Ct.

App. Div. 1977) (relying on agency regulations providing for relation back

of verified complaints under New Jersey employment discrimination law),

certification denied, 384 A.2d 842 (1978).

8 See, e.g., United States v. United States Currency in the Amount of

$103.387.27, 863 F.2d 555, 561-562, 563 n.13 (7th Cir. 1988); United States

v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir. 1985);

Johnston Broad. Co., 175 F.2d at 355-356; Lewis v. Connett, 291 F. Supp.

583, 584 (W.D. Ark. 1968); Tracy v. Robbins, 40 F.R.D. 108, 111, 114

(D.S.C. 1966), appeal dismissed, 373 F.2d 13 (4th Cir. 1967); Yuri Yajima

v. United States, 6 F.R.D. 260, 262 (E.D.N.Y. 1946); Franzen v. EJ. du

Pont de Nemours & Co., 36 F. Supp. 375, 378 (D.N.J. 1941); Duran v.

United States, 31 Ct. Cl. 353, 358 (1896); Griffin v. United States, 13 Ct. Cl.

257, 258-259 (1877).

9 In re Royal Circle of Friends Bldg. Corp., 159 F.2d 539, 541 (7th Cir.

1947); Harris v. Mills Novelty Co., 106 F.2d 976, 978 (10th Cir. 1939);

A lla a la ala

17

Court sustained that practice in Armstrong v. Fernandez,

208 U.S. 324, 327 (1908), where it noted that the bankruptcy

court had allowed verification of the petition nunc pro tunc

and found no error in the district court’s action.

This widespread practice demonstrates that, contrary to

the court of appeals’ reading of Title VII, a statutory re-

quirement that a charge must be verified does not mean that

verification must occur within the statute of limitations

period for filing a complaint, or that an unverified complaint

is not a valid “charge” within the meaning of the statute. Of

course, Congress could have departed from the common-law

rule by imposing a specific time limit on verifications. But in

the absence of such an express provision, there is no reason

te think that Congress intended to depart from that widely

recognized rule.”®

Adhering to the EEOC rule permitting verification after

the filing date has passed is particularly appropriate in the

context of Title VII. This Court has emphasized that Title

Leidigh Carriage Co. v. Stengel, 95 F. 637, 641 (6th Cir. 1899); In re

Robbins, 292 F. 653, 654 (S.D. Fla. 1923); In re Farthing, 202 F. 557, 566-

567 (E.D.N.C. 1913); In re Bellah, 116 F. 69, 77 (D. Del. 1902); Green River

Deposit Bank, 110 F. at 138.

10 There is only very limited authority in the state courts to the

contrary. In Griffith v. Adams, 52 A. 66, 68 (1902), the Maryland Court of

Appeals stated that unverified complaints are “nullities, to which no legal

effect could be given.” The court did not directly address the question

whether amendment would be permissible, however, and the rule in

question explicitly authorized courts to grant extensions of time to file the

required verification “for good cause shown.” Ibid. Other cases similarly

held only that unverified complaints may be disregarded, not that they

must be. See 49 C.J. § 825 & n.53 (1930) (citing cases). In the special con-

text of election contests, some courts have held that the verification

requirement is jurisdictional, such that failure to file a verified petition

within the relevant time period is an absolute bar. See Dinwiddie v.

Board of County Comm'rs, 708 P.2d 1043, 1046 (N.M. 1985), cert. denied,

476 U.S. 1117 (1986).

18

VII's charge-filing requirements should be interpreted in

light of the remedial purposes of the statute and the fact that

its administrative processes are frequently invoked by

laypersons without legal training or assistance. See Mo-

hasco Corp. v. Silver, 447 U.S. 807, 818 (1980) (Title VII

“was enacted to implement the congressional policy against

discriminatory employment practices,” and “that basic policy

must inform construction of this remedial legislation”); Zipes

v. Trans World Airlines, Inc., 455 U.S. 385, 397 (1982)

(cautioning against “technical reading” of charge-filing pro-

visions because “laymen, unassisted by trained lawyers,

initiate the process”); Love v. Pullman Co., 404 U.S. 522, 527

(1972) (a highly technical reading of the charge-filing re-

quirements is “particularly inappropriate in a statutory

scheme [like Title VII] in which laymen, unassisted by

trained lawyers, initiate the process”); see also EEOC v.

Commercial Office Prods. Co., 486 U.S. 107, 123-124 (1988);

ef. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761 (1979)

(making similar observations with respect to Age Dis-

crimination in Employment Act of 1967).

C. The Commission’s Regulation Is Reasonable And

Entitled To Deference

1. The background principle of law in this area so clearly

establishes that a verification may relate back to the initial

complaint that the court of appeals’ contrary reading of Title

VII should be rejected in light of the absence of any sug-

gestion that Congress intended to depart from the tradi-

tional rule. At a minimum, however, the court of appeals

clearly erred in concluding that Title VII’s plain language

compelled rejection of that well-established rule. Accord-

ingly, to the extent the statutory language does not resolve

the “precise question” at issue in this case, the Court should

defer to the Commission’s regulation. See Chevron, 467 U.S.

ee A

19

at 842-843; see also Commercial Office Prods., 486 U.S. at

115; Oscar Mayer & Co., 441 U.S. at 761.

Deference to the Commission’s implementation of Title

VII is particularly appropriate in this case for several

reasons. First, Congress expressly delegated to EEOC the

authority to “issue * * * suitable procedural regulations to

carry out the provisions of” Title VII. 42 U.S.C. 2000e-12(a).

Congress has thus “explicitly left a gap for the agency to fill,

[and] there is an express delegation of authority to the

agency.” Chevron, 467 U.S. at 843-844. Moreover, the Com-

mission formally published the regulation in the Code of

Federal Regulations and the Federal Register, rather than

informally articulating it in a policy statement or enforce-

ment guideline. See 31 Fed. Reg. 10,269 (1966); 37 Fed. Reg.

9215 (1972); 42 Fed. Reg. 55,388 (1977). Accordingly, the

Commission’s procedural regulation is binding “unless pro-

cedurally defective, arbitrary or capricious in substance, or

manifestly contrary to the statute.” United States v. Mead

Corp., 121 S. Ct. 2164, 2171 (2001); see also Commercial

Office Prods., 486 U.S. at 125 (O’Connor, J., concurring) (de-

ference to EEOC is “particularly appropriate” where regula-

tion involves a “technical issue of agency procedure”).!

11 Because this case involves an express delegation of authority to the

Commission to issue regulations, there should be no dispute that Chevron

deference is applicable. See Mead, 121 S. Ct. at 2172 (a “very good

indicator of delegation meriting Chevron treatment” is “express con-

gressional authorizations to engage in the process of rulemaking”). That is

true even though the regulation at issue was not the product of notice-

and-comment rulemaking. The Administrative Procedure Act does not

require a notice of proposed rulemaking for “rules of agency organization,

procedure, or practice.” 5 U.S.C. 553(b)(A). And unlike more informal

interpretive rules and guidelines that have received only “some def-

erence” (see Mead, 121 S. Ct. at 2175; Reno v. Koray, 515 U.S. 50, 61

(1995)), this case involves a formal published regulation that is binding on

the Commission. See also Mead, 121 S. Ct. at 2173 (making clear that

want of notice and comment does not preclude Chevron deference).

20

Second, the regulation reflects the Commission’s long-

standing and consistently-held interpretation of Title VII.

Cf. EEOC vy. Associated Dry Goods Corp., 449 U.S. 590, 600

n.17 (1981) (EEOC’s “contemporaneous construction” of

Title VII procedural issue “deserves special deference when

it has remained consistent over a long period of time”). The

charge and relation-back provisions now found at 29 C.F.R.

1601.12(b) were initially promulgated in 1966, just two years

after Title VII became law. See 29 C.F.R. 1601.11 (1966); 31

Fed. Reg. 10,269 (1966). The substance of the regulation has

remained essentially unchanged, with only minor changes in

citation and wording. Moreover, although Congress has

enacted several sets of amendments to Title VII, including

amendments to Section 706(b) in 1972, it has never dis-

approved the regulation by adding a limitation requirement

in Section 706(b) or a verification requirement in Section

706(e). Cf. Associated Dry Goods, 449 U.S. at 600 n.17 (Con-

gress’s failure to disapprove EEOC regulation “suggests its

consent to the Commission’s practice”).

12 Moreover, before the 1972 amendments, courts of appeals had

uniformly held, consistent with EEOC’s 1966 regulation, that charges

could be verified outside the charge-filing period. See Blue Bell Boots,

Inc. v. EEOC, 418 F.2d 355, 357 (6th Cir. 1969); Weeks v. Southern Bell

Tel. & Tel. Co., 408 F.2d 228, 230-231 (5th Cir. 1969); Choate v. Caterpillar

Tractor Co., 402 F.2d 357, 360 (7th Cir. 1968). By 1990, when Congress

incorporated Title VII’s procedural requirements into the ADA (see p. 2,

supra), all of the circuits that had addressed the issue had upheld EEOC’s

regulation permitting a verification made outside the limitation period to

relate back to a timely-filed but unverified charge. See Peterson v. City of

Wichita, 888 F.2d 1307, 1309 (10th Cir. 1989), cert. denied, 495 U.S. 932

(1990); Casavantes v. California State Univ., 732 F.2d 1441, 1443 (9th Cir.

1984); Weeks, supra. The first court of appeals decision to the contrary

was Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455, 458 (8th Cir. 1998);

see also Hodges v. Northwest Airlines, Inc., 990 F.2d 1030 (8th Cir. 1993)

(concluding that unverified charge was not timely filed with state agency).

21

2. The Commission’s regulation reflects a reasonable

interpretation of Title VII. The regulation is not contrary to

anything in the text of the statute and is consistent with

well-established background legal principles. It is also fully

consistent with the interests served by Title VII's charge,

verification, and limitation requirements. The main purpose

of a charge is to put EEOC on notice that the respondent

may have engaged in conduct that violates federal anti-

discrimination law. Under Title VII and Title I of the ADA,

EEOC (unlike other federal agencies with enforcement

Some courts recently have questioned whether, in the 1972 amend-

ments to Section 706(b), Congress intended to convert the verification

provision from a technical and directory measure to one that is sub-

stantive and mandatory. See Vason v. City of Montgomery, 240 F.3d 905,

907 n.2 (11th Cir. 2001) (per curiam). Those courts, however, have mis-

understood the thrust of the 1972 amendments. Congress rewrote Section

706(b) in 1972 to permit charges to be filed “on behalf of” aggrieved

persons as well as “by” aggrieved persons, and extended the verification

requirement to all charges, including Commissioner’s charges and the new

“on-behalf-of” charges. The new, more complex provisions for filing

charges required reorganization of the statutory language. Compare 42

U.S.C. 2000e-5(a) (1970) (“Whenever it is charged in writing under oath by

a person claiming to be aggrieved, or a written charge has been filed by a

member of the Commission{,] * * * the Commission shall! furnish

[the respondent] * * * with a copy of such charge[.]”) with 42 U.S.C.

2000e-5(b) (1994) (“Whenever a charge is filed by or on behalf of a person

claiming to be aggrieved, or by a member of the Commission * * * , the

Commission shall serve a notice of the charge * * * on (the respondent!

Charges shall be in writing under oath or affirmation{.]”). The scant

legislative history of that amendment indicates that Congress understood

the principal change to be that verification would be required in

Commissioner's charges and “on-behalf-of” charges; it does not suggest

that Congress understood that, before the amendment, verification was

not required in charges filed by individuals claiming discrimination. See

118 Cong. Rec. 7167 (1972) (section-by-section analysis prepared by Sens.

Williams and Javits). Moreover, nothing in the legislative history sug-

gests that verification must occur within the charge-filing period.

22

powers) may investigate only matters that are tied to

charges of discrimination that have been filed with the

Commission. See EEOC v. Shell Oil Co., 466 U.S. 54, 64, 68

(1984). That purpose is fulfilled if the charge is “sufficiently

precise to identify the parties, and to describe generally the

action or practices complained of,” with the minimum level of

specificity required by 29 C.F.R. 1601.12(b). A charge need

not also be verified to alert EEOC to potential discrimina-

tion that may warrant investigation.

The verification requirement serves to impress on com-

plainants the gravity of filing a charge and to ensure that

employers are not harassed by frivolous charges. Blue Bell

Boots, Inc., 418 F.2d at 357; ef. Shell Oil, 466 U.S. at 76 n.32

(explaining that, in Section 706(b), the “function of an oath is

to impress upon its taker an awareness of his duty to tell the

truth”). The employer’s interests are fully protected where,

as here, the charge is verified before the employer is

required to cooperate in the investigation. See Peterson v.

City of Wichita, 888 F.2d 1307, 1309 (10th Cir. 1989), cert.

denied, 495 U.S. 932 (1990); ef. Shell Oil, 466 U.S. at 64

(charge that meets the requirements set forth in Section

706(b) is prerequisite to judicial enforcement of an EEOC

subpoena); see also 42 U.S.C. 2000e-5(b) (requiring service of

notice of charge on employer within 10 days).

Title VII's limitation periods, “while guaranteeing the

protection of the civil rights laws to those who promptly

assert their rights,” are designed to “protect employers from

the burden of defending claims arising from employment

decisions that are long past.” Delaware State Coll. v. Ricks,

449 U.S. 250, 256-257 (1980). The charge itself, even if un-

verified, represents an assertion of the victim’s rights. A

complainant who, in compliance with EEOC’s regulations,

submits a detailed letter to the Commission within the appli-

cable time period and explains the factual basis for his claim

of discrimination cannot be said to have slept on his rights.

— a a

23

Furthermore, the deadlines imposed by the statute ensure

that, even when the charge is formally verified after the

limitation period has expired, employers will not need to

defend decisions that are long past. In sum, the regulation

“honor[s] the remedial purpose of the legislation as a whole

without rejecting the particular purpose of the filing require-

ment, to give prompt notice to the employer.” Zipes, 455

U.S. at 398.

3. The regulation also reflects the Commission’s practical

experience with processing charges of discrimination. First,

as this Court has recognized (pp. 17-18, supra), most in-

dividuals who contact the EEOC to complain about alleged

employment discrimination are laypersons acting without

legal training or assistance. Those complainants are not

likely to know, at least when they initially contact the Com-

mission, that a complaint of discrimination must be verified

by oath or affirmation to be treated as a formal charge of

discrimination.

Second, the limitation periods for filing an administrative

charge of discrimination with EEOC are relatively short:

180 days after the alleged unlawful employment practice, or

300 days in States and localities with qualified employment-

discrimination agencies (see note 1, supra). As there are

only 50 EEOC district, area, and local offices in the United

States, most complainants necessarily make initial contact

with the Commission by letter or telephone.” Complainants

often send letters to the EEOC near the end of the limitation

period, intending thereby to file charges of discrimination,

without being aware that the charge must be verified. The

regulation protects those persons if they have asserted their

18 For example, the Seattle District Office handles charges from

Alaska, Idaho, and Oregon as well as Washington; the Denver District

Office covers not only Colorado but also Montana, Wyoming, Nebraska,

North Dakota, and South Dakota.

24

rights in a timely fashion. It also preserves the

Commission’s jurisdiction to investigate allegations of

discrimination, which it could not do if the charge were

deemed to be untimely. See Shell Oil, 466 U.S. at 64."

Third, because most complainants to EEOC are lay-

persons, EEOC has long found it useful to have Commission

staff prepare a short formal charge of discrimination (the

Form 5) for the complainant to review and to execute under

oath or affirmation, once the staff has distilled the essence of

the allegations from contacts with the complainant. This

practice simplifies EEOC’s enforcement of Title VII by fo-

cusing the complainant’s allegation as well as the inquiry

that EEOC then makes of the employer. The process of

transferring the individual's allegations to a Form 5 Charge

of Discrimination ready for execution and verification often

involves correspondence by mail between the Commission

and the complainant. That process may take several weeks.

Thus, practical considerations strongly support the Com-

mission’s relation-back regulation. Even when a complain-

ant sends the Commission a detailed written letter setting

forth the basis for his allegation of discrimination well within

the statutory limitation period, the complainant is unlikely to

know of the verification requirement, and it will often be

14 When an individual initially contacts EEOC by telephone, a member

of the Commission staff may discuss the matter with the caller to make

sure that the person’s complaint is not more appropriately directed to

another agency (such as the Department of Labor or the National Labor

Relations Board), and then typically sends that person an intake sheet or

questionnaire to fill out in his own words and to return to the Commission.

Once that intake sheet or questionnaire is returned to EEOC, a

Commission st~ff person will then examine the case further, may schedule

an interview with the complainant ‘.: person or by telephone), and may

eventually prepare a Form 5 Chaige of Discrimination for the complainant

to verify and execute. Under the EEOC regulation at issue here, a com-

plainant’s telephone call may not be treated as a charge of discrimination;

a charge must be in writing. See 29 C.F.R. 1601.12(b).

25

impossible for the Commission to prepare, and the complain-

ant to verify, a Form 5 Charge of Discrimination before the

short limitation period expires. If such an initial written (but

unverified) submission to the Commission did not toll the

statute of limitations for filing a charge, EEOC would likely

lose the opportunity to investigate allegations of discrimi-

nation in many cases, and individuals would lose the op-

portunity to obtain relief as well.

The Commission’s regulation also accommodates the fact

that other federal, state, and local agencies also have juris-

diction over employment-discrimination complaints. As

noted above (note 1, supra), in deferral jurisdictions, the

Commission must defer to the qualified state or local agency

for 60 days before processing a charge unless the state or

local proceedings conclude earlier. 42 U.S.C. 2000e-5(c). Ifa

Title VII charge is filed initially with EEOC, the Com-

mission may refer the charge to such a state or local agency

for processing. See Commercial Office Prods., 486 U.S.

at 110-112. Some States, including Virginia where this

case originated, do not have a verification requirement for

employment-discrimination complaints. See 22 Va. Admin.

Code § 25-10-20 (1990) (defining “complaint” to mean “a writ-

ten statement by a person * * * alleging an act of dis-

crimination” prohibited by state law), § 25-10-50 (listing

required contents of complaint but not including verifi-

cation). The EEOC’s regulation permits it to refer unveri-

fied charges to state and local agencies. See 29 C.F.R.

1601.13(a)(4)(i). Those State and local agencies can then

determine whether they may take action on an unverified

charge under state or local law. The court of appeals’ deci-

sion, however, might prevent EEOC from referring unveri-

fied charges to state and local agencies, under the reasoning

an unverified charge was not a “charge” at all within the

meaning of Title VII, even if those state and local agencies

do not require verification for their own purposes.

26

In addition, federal agencies, such as the Department of

Labor, that administer other anti-discrimination provisions

and other federal labor laws often receive charges that

should be handled by EEOC. Those agencies typically for-

ward such charges to the Commission. Many of the referred

charges are unverified, in part because the anti-discrimi-

nation provisions that those other federal agencies enforce

do not require verification. See, e.g., 41 C.F.R. 60-1.23 (De-

partment of Labor regulation governing complaints under

anti-discrimination provisions of Executive Order No. 11,246

does not require verification). Under the EEOC regulation,

charges that are timely filed with another agency and are

then referred to the Commission may be considered timely

filed under Title VII, even if the transfer process is time-

consuming and verification occurs outside the limitation

period for filing charges with EEOC. That approach ensures

that persons who seek relief for alleged employment dis-

crimination do not mistakenly forfeit their rights.

* * * * *

In short, although Title VII provides a statute of limita-

tions for filing charges and separately requires that a charge

be verified, Title VII does not include a statute of limitations

for verification. Nothing in the text or iegislative history of

the statute suggests that verification must occur within the

limitation period for filing charges, and the background legal

principle establishes the opposite presumption—that verifi-

cation may occur outside the limitation period for filing a

complaint and will relate back to a timely filed complaint.

EEOC’s regulation is consistent with that background rule

and furthers the purposes of the charge-filing, limitation, and

verification provisions of Title VII. Accordingly, that regu-

lation should be upheld.

——— ee Ce

oa —_— ———————

27

CONCLUSION

The judgment of the court of appeals should be reversed,

and the case remanded for further proceedings.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

RALPH F. Boyp, JR.

NICHOLAS M. INZEO ’

—s 7 ae Ba sien T

PHILIP B. SKLOVER - ULEMEN

Associate General Counsel . mae General

VINCENT J. AUL R.Q. WOLFSON

Assistant Fone» ell a — to the Solicitor

BARBARA L. SLOAN

A

,

Opportunity Commission

AUGUST 2001