Amicus Curiae Brief — Edelman v. Lynchburg College

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FALE ne

No. 00-1072 cr go 200

IN THE

Supreme Court of the Anited States

LEONARD EDELMAN,

Petitioner,

Vv.

LYNCHBURG COLLEGE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF RESPONDENT

ANN ELIZABETH REESMAN

RAE T. VANN *

Counsel of Record

MCGUINESS NORRIS & WILLIAMS, LLP

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory Council

* Admitted Only in Connecticut

October 2001

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

CE ee Fy COED cercerecssnncsseesncsnesssnesersseme ili

INTEREST OF THE AMICUS CURIAE ...........+:+000+0+0+: 2

STATEMENT OF THE CASE.....cccccccsocsccsvoccssosecessveeses 3

SUMMARY OF ARGUMENT .............cccccsssssssessseseesees 5

FTE tein 6

I. THE EEOC’S RELATION-BACK REGULA-

TION, WHICH PURPORTS TO ALLOW AN

UNVERIFIED SUBMISSION TO STAND IN

THE PLACE OF A VERIFIED, TIMELY

CHARGE, REPRESENTS AN IMPERMIS-

SIBLE EXERCISE OF ADMINISTRATIVE

AUTHORITY AND THEREFORE iS NOT

ENTITLED TO JUDICIAL DEFERENCE....... 6

A. The EEOC’s Relation-Back Regulation

Does Not Qualify for Judicial Deference

Under the Chevron DOCtrine............:.000see0 8

1. The Relation-Back Regulation Con-

flicts With the Plain Language of the

RAR ccercerssrssemencsaremnsnereemsneemnevesesersenenease 10

2. The EEOC’s Interpretation of Title

VIl’s Charge Filing Requirements

Does Not Represent a Reasonable

Construction of the Act and Therefore

Is Not Entitled to Deference by This

CINDER ccssnccecanssissnsesnecocsesessenscnensnesuevecanesssee 1]

B. The EEOC’s Relation-Back Regulation Is

Not Entitled to Skidmore Deference ............ 12

1. The EEOC’s Relation-Back Doctrine

Conflicts With the Agency’s Other

Title VII Regulatory Provisions............. 13

(i)

ii

TABLE OF CONTENTS—Continued

2. The Relation-Back Rule Is _ Incon-

sistent With Regulatory Guidance

Issued Contemporaneously With Pass-

098 OF GRO ACR .cccceccccrcccesccerecesecsessensnsnesnee

3. The EEOC’s Relation-Back Doctrine

Conflicts With the Agency’s Own

Il. ALLOWING THE EEOC TO CIRCUM-

VENT TITLE VII’S 300-DAY VERIFIED

CHARGE FILING REQUIREMENT WOULD

LIMIT EMPLOYERS’ ABILITY TO

TIMELY ADDRESS, AND THEREFORE

UNDERMINE TITLE VII’S PRIMARY

GOAL OF ERADICATING, EMPLOYMENT

DISCRIMINATION .....ccccccccrseccsscesescsccssosssesseees

CONCLUSION ..ccccccscccsccccscccssecsccovssonssosessnesssnssssossosossoss

Page

iti

TABLE OF AUTHORITIES

FEDERAL CASES Page

Balazs v. Liebenthal, 32 F.3d 151 (4th Cir.

ee 6, 18

Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996)......... 12

Burlington Indus. v. Ellerth, 524 U.S. 742

ee 6, 19

Chevron U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) ......ccccccceeeeeeeneeeeees passim

Christensen v. Harris County, 529 U.S. 576

CD cecccccoceccescccecccsesscserecsesscsssccsssccsscccssoosssocosees 9

Connecticut National Bank v. Germain, 503 U.S.

249 (1992) .cccccscccvreccvereccvssercescocsscccesssosessrosscssocees 10

Danley v. Book-of-the-Month Club, Inc., 921 F.

Supp. 1352 (M.D. Pa. 1996), aff'd mem., 107

F.3d 861 (3d Cir, 1997)......:ccccceesseeeseeressnsennennes 6, 18

EEOC v. Arabian Am. Oil Co., 499 U.S. 244

(1991) ..ccccccorcsecrscccecssesscossonscosssesssesssesssssoosssossocees 9,12

EEOC v. Shell Oil Co., 466 U.S. 54 (1984)........++. 7,17

Edelman v. Lynchburg College 228 F.3d 503 (4th

Cir. 2000), cert. granted, 121 S. Ct. 2547

TT 3,4

Edelman v. Lynchburg College, 66 F. Supp.2d

TTT (W.D. Va. 1999) ..cceccsroccrcresssesssereesesessesrensees 4

Mohasco Corp. v. Silver, 447 U.S. 807 (1980)...... 3, 10

Public Employees Ret. Sys. v. Betts, 492 U.S. 158

(19D) .cccocccccccoccreccecessscescososscscscsccvecssssesoesoossooscos 11

Skidmore v. Swift, 323 U.S. 134 (1944)......... 5, 12, 13, 17

University of Pa. v. EEOC, 493 U.S. 182

(IDB cccececcccecccceccsecsesscerevsesecosonsccsossscsossocsocsoosoese 7

United States v. Mead Corp., 121 S. Ct. 2164

CD cecancsscsecssessenesncsccscsscsccscessessssscscssscencecsecsooes 9,12

Vason v. City of Montgomery, 240 F.3d 905

(11th Cir. 2001).....cccccssccoccsscoorerseecsersensesssenseneess 6, 18

iv

TABLE OF AUTHORITIES—Continued

Page

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

(( 17

STATUTES

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 200D! ef SOq........0cccreeereresereerseseereees passim

42 U.S.C. § 2O00D]-2(a)(1).......cccereseessereserserssenees 7

423 UBC. § FEBBD-B ceccscssccsscssescsssssssssssssscsssssesees 5,7

42 U.S.C. § 200D]-S(D) .........ccccsesessereseerserensenee 5,7, 11

42 U.S.C. § 2O0OD]-S(€)(1)....eeccersereeerseersees 5,7, 10, 17

REGULATIONS

29 C.F.R. § 1601.5 (1965) ........cccccsscsesosessersesenees 14

29 SPR. § 16B0.B (IGES) nccecccccceccesessssssccssesssssseses 14

2D CPR. © 1GB6D cecccccsccsccsssssscssccssssssssssnsesssssessess 5,13

29 C.F.R. § 1601.11(a)-(€) (1965) ........0cccerseereeennes 14, 15

2D CHR. B BEBE ABGID cccccscccsccsscscscsccscsssssssssessessess passim

2D CPR. § 1GGBIG cccccccccsssscscccesccssscsssssssccsssssssseses 19, 20

30 Fed. Reg. 8407 (July 1, 1965).........sssereeeseees 5,14

31 Fed. Reg. 10269 (July 29, 1966).........ceseeeees 15

42 Fed. Reg. 42022 (Aug. 19, 1977)........c-seeseeeee 9

45 Fed. Reg. 48614 (July 21, 1980)............cceeesees 9

46 Fed. Reg. 9970 (Jan. 30, 1981) ........ecceerersenees 9

46 Fed. Reg. 37523 (July 21, 1981)........cceeseeerees 9

52 Fed. Reg. 11503 (Apr. 9, 1987) ........seseereenees 9

MISCELLANEOUS

EEOC Compl. Man. § 2-1, Overview (May 12,

ye 16

EEOC Compl. Man. § 2-IV, Timeliness (May 12,

y 16

EEOC Compl. Man. § 2-IV(A), Charge Filing

(illary 12, ZODD)....cccccccesccsscccccscsscrsccssssscsssccsscsoses 5

EEOC Compl. Man. § 2-IV(D), Extending the

Time Frame for Filing (May 12, 2000).............. 16

IN THE

Supreme Court of the United States

No. 00-1072

LEONARD EDELMAN,

Petitioner,

Vv.

LYNCHBURG COLLEGE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF RESPONDENT

The Equal Employment Advisory Council respectfully

submits this brief amicus curiae.' The written consent of all

parties has been filed with the Clerk of this Court. The brief

urges affirmance of the decision below and thus supports the

position of Respondent Lynchburg College before this Court.

' Counsel for amicus curiae authored this brief in its entirety. No

person or entity, other than the amicus curiae, its members, or its counsel,

made a monetary contribution to the preparation or submission of

the brief.

2

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council (EEAC) is a

nationwide association of employers organized in 1976 to

promote sound approaches to the elimination of discrimin-

atory employment practices. Its membership comprises a

broad segment of the business community and includes over

360 of the nation’s largest private sector corporations.

EEAC’s directors and officers include many of industry's

leading experts in the field of equal employment opportunity.

Their combined experience gives EEAC an unmatched depth

of knowledge of the practical, as well as legal, considerations

relevant to proper interpretation and application of equal

employment laws and regulations. EEAC’s members are

firmly committed to the principles of nondiscrimination and

equal employment opportunity.

All of EEAC’s member companies are employers subject

to Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. § 2000 et seq., as well as other federal

employment nondiscrimination laws enforced by the U.S.

Equal Employment Opportunity Commission (EEOC). As

employers, and as potential respondents to charges of

discrimination under Title VII, EEAC’s members have a

direct and ongoing interest in the issue presented in this

appeal concerning the validity of the EEOC’s “relation-back”

regulation, 29 C.F.R. § 1601.12(b), which purports to allow

an untimely charge of discrimination to “relate-back” to a

timely, yet unverified, written submission. The court below

properly ruled that the EEOC’s relation-back regulation

circumvents Title VII’s plain and unambiguous charge filing

requirements and therefore is invalid as a matter of law.

Because of its interest in the application of the nation’s fair

employment laws, EEAC has filed over 470 briefs as amicus

curiae in cases before the Supreme Court, the United States

Courts of Appeals, and various state supreme courts. As

part of this amicus activity, EEAC has filed briefs in

3

Mohasco Corp. v. Silver, 447 U.S. 807 (1980), and other

cases concerning application of Title VII's charge filing

requirements.

Thus, EEAC has an ongoing interest in, and a familiarity

with, the legal and public policy issues presented to the Court

in this case. Because of its significant experience in these

matters, EEAC is well situated to brief this Court on the

ramifications of the issues beyond the immediate concerns of

the parties to the case.

STATEMENT OF THE CASE

Petitioner Leonard Edelman, a biology professor for

Respondent Lynchburg College, was denied tenure on June 6,

1997. Edelman v. Lynchburg College, 228 F.3d 503, 505 (4th

Cir. 2000). Subsequently, on November 14, 1997, he sub-

mitted an unverified correspondence to the EEOC, alleging

that the College discriminated against him on the basis of his

gender, national origin and religion.” Jd. His letter concluded

with the statement, “I hereby file a charge of employment

discrimination against Lynchburg College . . . and I call upon

the EEOC to investigate this case.” /d. at 505-06. Edelman’s

letter was received by the EEOC on November 18, 1997.

228 F.3d at 506.

On November 26, 1997, Edelman, through his attorney,

sent a second correspondence to the EEOC requesting a

“personal interview with an EEOC investigator prior to the

final charging documents being served on the college.” /d.

The letter further indicated that Edelman understood any

“delay occasioned by the interview” would not affect the

Novemiber 14, 1997 “filing date.” /d.

The EEOC responded by sending Edelman correspondence

indicating its need for “additional information in order to

investigate his case.” Jd. The letter also urged Edelman to

2 Edelman is a white Jewish man of Polish national origin.

4

schedule “an interview ‘as soon as possible because a charge

of discrimination must be filed within the time limits imposed

by law’.” /d. The EEOC interviewed Edelman on March 3,

1998, and on March 18, the agency mailed him a draft charge

for his verified signature. Edelman did not return a verified

charge until April 15, 1998, 313 days after the alleged

discrimination occurred. /d.

Notwithstanding the filing defects, the EEOC served

Lynchburg College with notice of the charge and commenced

an investigation thereof, at the conclusion of which it issued

Edelman a “right-to-sue” notice. /d. Edelman then filed an

action in Virginia state court alleging, among other things, a

cause of action under Title VII. /d. Lynchburg College

removed the action to federal district court and moved to

dismiss on jurisdictional grounds, claiming that Edelman’s

failure to timely file a charge of discrimination with the

EEOC deprived the court of subject matter jurisdiction over

the Title VII claim. /d. The district court granted the

College’s motion, and remanded Edelman’s remaining claims

to Virginia state court. Edelman v. Lynchburg College, 66 F.

Supp.2d 777, 781-82 (W.D. Va. 1999).

Edelman appealed the dismissal of his Title VII action to

the U.S. Court of Appeals for the Fourth Circuit, arguing that

under the EEOC’s relation-back regulation, his April 15,

1998 charge “related-back” to the November 14, 1997

unverified submission and, as such, was timely filed in

accordance with Title VII's charge filing requirements.

Edelman, 228 F.3d at 507. The Fourth Circuit ruled that

Edelman’s charge was not filed within the timeframes

prescribed by Title VII. /d. at 509. It held further that the

EEOC’s relation-back regulation is contrary to the plain

language of the Act and therefore is not entitled to judicial

deference. /d. at 508-09. On January 2, 2001, Edelman filed

a petition for writ of certiorari, which this Court granted on

the limited issue of the validity of the EEOC’s relation-back

regulation. 121 S. Ct. 2547 (2001).

5

SUMMARY OF ARGUMENT

Title VII expressly provides that a charge “shall be in

writing under oath or affirmation and shall contain such

information and be in such form as the Commission

requires.” 42 U.S.C. § 2000e-5(b) (emphasis added). Fur-

thermore, Title VII clearly and unambiguously prescribes the

timeframe within which a charge of discrimination must be

submitted to the agency for investigation. 42 U.S.C. § 2000e-

5(e)(1). Despite this unequivocal statutory language, the

EEOC’s procedural regulations permit an untimely charge of

discrimination to “relate-back” to a timely filed, but unver-

ified submission. 29 C.F.R. § 1601.12(b).

Because Congress has spoken directly on the issue of

timely filing of verified charges, and the EEOC’s relation-

back regulation conflicts with the plain language of the Act

and is unreasonable, it is not entitled to judicial deference

under Chevron U.S.A. v. Natural Resources Defense Council,

467 U.S. 837 (1984). Nor is the EEOC’s relation-back

doctrine entitled to “persuasive” judicial deference under

Skidmore v. Swift, 323 U.S. 134 (1944), since it conflicts with

other provisions contained in the same procedural scheme, is

inconsistent with the EEOC’s own charge filing enforcement

guidance, and clashes with regulatory guidance issued by

the agency contemporaneously with the passage of Title VII.

29C.F.R. §§ 1601.9, 1601.12(b); EEOC Compl. Man.

§ 2-IV(A), Charge Filing (May 12, 2000) °*; 30 Fed. Reg.

8407 (July 1, 1965) (codified at 29 C.F.R. § 1601.5).

The EEOC ordinarily will not, and is not required to, serve

notice of an unverified submission on an employer implicated

in the complaint. 42 U.S.C. § 2000e-5; Brief for the United

States and the Equal Employment Opportunity Commission

as Amici Curiae on Petition for a Writ of Certiorari, at 16-17.

Since the relation-back regulation contains no time limit for

> http :/|www.eeoc.gov/docs/threshold.html#2-IV-A

6

after-the-fact verification, an individual could wait forever

and a day to perfect his or her submission and therefore

permit it to be served on the named respondent. In fact, the

EEOC has waited years to serve respondents with discrimin-

ation complaints that were not submitted in accordance with

Title VII’s charge filing requirements. E.g., Danley v. Book-

of-the-Month Club, Inc., 921 F. Supp. 1352 (M.D. Pa. 1996),

affd mem., 107 F.3d 861 (3d Cir. 1997); Balazs v.

Liebenthal, 32 F.3d 151 (4th Cir. 1994); Vason v. City of

Montgomery, 240 F.3d 905 (1 Ith Cir. 2001).

Providing notice of alleged discriminatory acts long after

the fact deprives a respondenit-employer of the opportunity to

conduct a prompt internal investigation of the allegations. It

also requires respondents to defend themselves against claims

based on incidents that could have occurred years earlier, for

which they no longer possess pertinent employment records.

Thus, the EEOC’s relation-back regulation impedes effective

self-monitoring of employment practices and _ thereby

undermines Title VII’s well-recognized goals of preventing

and correcting workplace discrimination. Burlington Indus.

v. Ellerth, 524 U.S. 742, 764 (1998).

ARGUMENT

I. THE EEOC’S RELATION-BACK REGULA-

TION, WHICH PURPORTS TO ALLOW AN

UNVERIFIED SUBMISSION TO STAND IN

THE PLACE OF A _ VERIFIED, TIMELY

CHARGE, REPRESENTS AN IMPERMISSIBLE

EXERCISE OF ADMINISTRATIVE AUTH-

ORITY AND THEREFORE IS NOT ENTITLED

TO JUDICIAL DEFERENCE

The U.S. Equal Employment Opportunity Commission

(EEOC) is authorized by Congress to enforce Title VII of the

Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e er

seq., which prohibits discrimination against a covered indivi-

7

dual “with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). “Title VII sets forts ‘an integrated, multistep

enforcement procedure’ that . . . begins with the filing of a

charge with the EEOC alleging that a given employer has

engaged in an unlawful employment practice.” EEOC v.

Shell Oil Co., 466 U.S. 54, 62 (1984) (quoting Occidental

Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977) (foot-

note omitted)).

Title VII expressly provides that a charge “shall be in

writing under oath or affirmation and shall contain such

information and be in such form as the Commission

requires.” 42 U.S.C. § 2000e-5(b) (emphasis added). The

EEOC is permitted to investigate alleged employment

discrimination under Title VII only upon receipt of a legally

sufficient discrimination “charge.” 42 U.S.C. § 2000e-5. As

this Court has noted, “[t]he Commission’s enforcement

responsibilities are’triggered by the filing of a specific sworn

charge of discrimination.” University of Pa. v. EEOC, 493

U.S. 182, 190 (1990) (emphasis added).

Furthermore, Title VII clearly and unambiguously

prescribes the timeframe within which a charge of

discrimination must be submitted to the agency for

investigation:

A charge under this section shall be filed within one

hundred and eighty days after the alleged unlawful

employment practice occurred . . . except that in a case

of an unlawful employment practice with respect to

which the person aggrieved has initially instituted

proceedings with a State or local agency with authority

to grant or seek relief from such practice . . . such charge

shall be filed . . . within three hundred days after the

alleged unlawful employment practice occurred . . .

42 U.S.C. § 2000e-5(e)(1) (emphasis added).

Section 1601.12(b) of the EEOC’s procedural regulations

purports to aliow an otherwise untimely filed discrimination

charge to be rendered timely by virtue of its “relation-back”

to an earlier, timely submission:

[A] charge is sufficient when the Commission receives

from the person making the charge a written statement

sufficiently precise to identify the parties, and to

describe generally the action or practices complained of.

A charge may be amended to cure technical defects or

omissions, including failure to verify the charge, or to

clarify and amplify allegations made therein . . . .

29 C.F.R. § 1601.12(b) (emphasis added). Under the regula-

tion, any “written statement sufficiently precise to identify the

parties, and to describe generally the action or practices

complained of,” whether verified or not, is elevated to the

status of, and for enforcement purposes is indistinguishable

from, a charge that complies fully with Title VII’s charge

filing requirements. /d. For the reasons set forth more

fully below, the EEOC’s relation-back regulation repre-

sents an impermissible exercise of administrative authority,

is not entitled to judicial deference, and therefore should

be invalidated.

A. The EEOC’s Relation-Back Regulation Does

Not Qualify for Judicial Deference Under the

Chevron Doctrine |

In Chevron U.S.A. v. Natural Resources Defense Council,

this Court set forth a two-part standard to be applied by courts

in assessing the validity of an administrative statutory

' interpretation:

When a court reviews an agency’s construction of

the statute which it administers, it is confronted with

two questions. First, always, is the question whether

Congress has directly spoken to the precise question at

issue. If the intent of Congress is clear, that is the end of

9

the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of

Congress. If, however, the court determines Congress

has not directly addressed the precise question at issue,

the court does not simply impose its own construction of

the statute, as would be necessary in the absence of an

administrative interpretation, Rather, if the statute is

silent or ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer is

based on a permissible construction of the statute.

467 U.S. 837, 842-43 (1984) (footnotes omitted). Assuming,

arguendo, that the Chevron doctrine applies to procedural

regulations such as the one at issue in this case * the EEOC’s

*“The relation-back provision of § 1601.12(b) is undeniably

procedural in nature,” Brief of Petitioner, at 7, is not subject to formal

notice-and-comment rulemaking, see, e.g., 42 Fed. Reg. 42022 (Aug. 19,

1977), and does not carry the force of law. EEOC v. Arabian Am. Oil Co.,

499 U.S. 244, 258 (1991). Therefore, Chevron deference arguably does

not apply. United States v. Mead Corp., 121 S. Ct. 2164, 2172 (2001)

(“We have recognized a very good indicator of delegation meriting

Chevron treatment in express congressional authorizations to engage in

the process of rulemaking or adjudication that produces regulations or

rulings for which deference is claimed.”); see also Christensen v. Harris

County, 529 U.S. 576, 587 (2000) (“Interpretations such as those in

opinion letters—like interpretations contained in policy statements,

agency manuals, and enforcement guidelines, all of which lack the force

of law—do not warrant Chevron-style deference.”)

The fact that the EEOC over the years has issued public notices of

proposed changes to its procedural regulations and has solicited public

comment thereupon does not alter the non-substantive nature of the

regulations. 42 Fed. Reg. 42022 (Aug. 19, 1977); 45 Fed. Reg. 48614

(July 21, 1980); 46 Fed. Reg. 9970 (Jan. 30, 1981); 46 Fed. Reg. 37523

(July 21, 1981); 52 Fed. Reg. 11503 (Apr. 9, 1987). Not only has the

agency resorted to such procedures inconsistently, when it has sought

public comment to proposed revisions to the regulations, its notvces have

included unequivocal disclaimers that emphasize the agency’s exemption

from formal notice-and-comment rulemaking requirements. 42 Fed. Reg.

42022 (Aug. 19, 1977).

10

relation-back rule nonetheless fails to qualify for judicial

deference under either prong of that test.

1. The Relation-Back Reguiation Conflicts

With the Plain Language of the Act

Under the first part of the Chevron standard, if Congress

has “spoken to the precise question at issue,” the agency may

not attempt to impose its own interpretation of the matter, and

“must give effect to the unambiguously expressed intent of

Congress.” Jd. In Connecticut National Bank v. Germain,

503 U.S. 249 (1992), this Court noted:

[I]n interpreting a statute a court should always turn first

to one, cardinal canon before all others. We have stated

time and again that courts must presume that a

legislature says in a statute what it means and means in a

statute what it says there. When the words of a statute

are unambiguous, then, this first canon is also the last:

‘judicial inquiry is complete.’

503 U.S. at 253-54 (citations omitted).

Title VII expressly declares that a charge—which under the

Act must be in writing and under oath or affirmation—shall

be filed with the EEOC within 180 or 300 days of the alleged

discriminatory act. 42 U.S.C. § 2000e-S(e)(1). In estab-

lishing strict filing deadlines under Title VII, Congress

“clearly intended to encourage prompt processing of all

charges of employment discrimination” and chose not to

legislate any exceptions to the general rule. Mohasco Corp.

v. Silver, 447 U.S. 807, 825 (1980). Thus, courts “must

respect the compromise embodied in the words chosen by

Congress” and may not “alter the balance strack by Congress

in procedural statutes by favoring one side or the other in

matters of statutory construction.” /d.

Section 1601.12(b) of the EEOC’s procedural regulations

purports to allow an otherwise untimely filed discrimination

charge to be rendered timely by virtue of its “relation-back”

11

to an earlier, timely submission that need not be sworn. 29

C.F.R. § 1601.12(b). Under the regulation, any “written

statement sufficiently precise to identify the parties, and to

describe generally the action or practices complained of,”

whether verified or not, is elevated to the status of, and for

enforcement purposes is indistinguishable from, a charge that

complies fully with Title VII’s charge filing requirements.

Id. In fact, the regulation inexplicably places unverified

submissions on a higher footing than verified charges that are

timely filed, since it permits, but does not require, after-the-

fact verification, an option clearly at odds with Title VII's

plain language. /d.; 42 U.S.C. § 2000e-5(b).

“Even contemporaneous and longstanding agency

interpretations must fall to the extent they conflict with

statutory language.” Public Employees Ret. Sys. v. Betts, 492

U.S. 158, 171 (1989). Since the EEOC’s relation-back

regulation clearly conflicts with Title VII’s plain language, it

must be invalidated.

2. The EEOC’s Interpretation of Title VII's

Charge Filing Requirements Does Not

Represent a Reasonable Construction of

the Act and Therefore Is Not Entitled to

Deference by This Court

Title VII's charge filing requirements are unambiguous.

Even if they were not, the EEOC’s relation-back regulation

nonetheless would fail to qualify for Chevron deference

because it is unreasonable. If a statute “is silent or ambiguous

with respect to the specific issue, the question for the court is

whether the agency’s answer is based on a permissible

construction of the statute.” Chevron, 467 U.S. at 843

(footnote omitted). If the agency’s interpretation is unreason-

able, then it must be invalidated.

Among other things, the EEOC’s relation-back regulation

effectively nullifies Title VII's filing deadlines by allowing

an untimely charge to be rendered timely based on its

12

relationship to any earlier, unverified written submission.

Under the rule, a charging party is under no obligation ever to

verify his or her written complaint of discrimination as

required by Title VII. Moreover, the regulation sets down no

timeframe within which this after-the-fact verification is to

occur. Thus, filing of a verified charge could occur several

months, or even years, after receipt of the unsworn

submission and expiration of the statutory filing deadline.

A statutory limitations period is “a clearly legal issue that

courts are better equipped to handle.” Bamidele v. INS, 99

F.3d 557, 561 (3d Cir. 1996) (citations omitted). The

EEOC’s relation-back regulation, which in effect regulates

Title VII's charge filing deadlines out of existence, is well

outside of the agency’s administrative authority and therefore

represents a patently unreasonable construction of the Act.

B. The EEOC’s Relation-Back Regulation Is Not

Entitled to Skidmore Deference

In Skidmore v. Swift, 323 U.S. 134 (1944), this Court ruled

that an agency’s interpretations of a statute it is authorized to

administer, “while not controlling upon the courts by reason

of their authority, do constitute a body of experience and

informed judgment to which courts and litigants may properly

resort for guidance.” 323 U.S. at 140. In determining what

level of deference is to be accorded administrative

interpretations of statutory law, courts applying Skidmore

have considered “the thoroughness evident in its con-

sideration, the validity of its reasoning, its consistency with

earlier and later pronouncements, and all those factors which

give it power to persuade, if lacking power to control.”

EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 258 (1991)

(citations and internal quotations omitted). Such an approach

“has produced a spectrum of judicial responses, from great

respect at one end . . . to near indifference at the other.”

United States v. Mead Corp., 121 S. Ct. 2164, 2172 (2001)

(citations omitted).

———

eee

13

Applying the Skidmore factors to the EEOC’s relation-back

regulation, it is clear that the regulation lacks any persuasive

authority and therefore is not entitled to judicial deference,

however slight, from this Court.

1. The EEOC’s Relation-Back Doctrine

Conflicts With the Agency’s Other Title

VII Regulatory Provisions

Section 1601.9 of the EEOC’s procedural regulations

requires that “a charge shall be in writing and signed and

shall be verified,” while Section 1601.12(b) of the same

regulatory scheme provides that “a charge may be amended to

cure technical defects or omissions, including failure to verify

the charge.” 29 C.F.R. §§ 1601.9, 1601.12(b) (emphasis

added). Reading the regulations as a whole, they require, on

the one hand, that a charge be signed and verified. On the

other hand, the regulations merely permit, but do not

mandate, after-the-fact perfection of an unverified sub-

mission, where the subsequent, verified charge on which the

submission presumably was based is not timely filed. Thus,

an unverified submission is permitted under Section

1601.12(b) to stand as a charge, even if no effort ever is made

to satisfy the verification requirements contained in Section

1601.9 of the regulations. /d.

Because the EEOC’s regulation directly conflicts with

other provisions within the same body of regulations, it lacks

even the slightest “power to persuade” and therefore is not

entitled to Skidmore deference.

2. The Relation-Back Rule Is Inconsistent

With Regulatory Guidance Issued Con-

temporaneously With Passage of the Act

The EEOC’s original Title VII procedural regulations, first

promulgated on July |, 1965, provided:

14

The Commission will receive information concerning

alleged violations of this title from any person. Where

the information discloses that a person is entitled to file a

charge with the Commission, the appropriate office will

render him assistance in the filing of a charge.

30 Fed. Reg. 8407, 8408 (July 1, 1965) (codified at 29 C.F.R.

§ 1601.5). Section 1601.5 of the 1965 regulations clearly

distinguished between a “charge” and othe: “information” the

EEOC may receive regarding alleged discrimination, which

may be used to assist in the filing of a charge, but which does

not, of itself, constitute a valid charging document. 29 C.F.R.

§ 1601.5 (1965). The regulations also provided that a

“charge,” as distinguished from other information received by

the agency, “shall be in writing and signed, and shall be

swom to....” 29C.F.R. § 1601.8 (1965).

Significantly, the 1965 regulations did not contain, and

made no reference to, the relation-back provision at issue

in this case.” 29 C.F.R. § 1601.11(a)-(e) (1965). It was not

* The 1965 provision most analogous to the one at issue in the instant

case provided, in whole:

§ 1601.11 Contents.

The full name and address of the person making the charge;

The full name and address of the person against whom the charge is

made (hereinafter referred to as the respondent);

A clear and concise statement of the facts, including pertinent dates,

constituting the alleged unlawful employment practice;

If known, the approximate number of employees of the respondent

employer or the approximate number of members of the respondent

labor organization, as the case may be;

A statement disclosing whether the proceedings involving the

alleged unlawful employment practice have been commenced

before a State or local authority charged with the enforcement of

15

until the following year, on July 29, 1966, that the agency

amended the regulations to include the new rule. 31

Fed. Reg. 10269 (July 29, 1966) (codified at 29 C.F.R.

§ 1601.11(b)).

When the EEOC first promulgated the procedural

regulations in 1965, it clearly understood that only written,

swom submissions are entitled under Title VII's plain

language to be considered “charges.” The agency’s

subsequent adoption of the relation-back “policy,” which in

effect negates Title VII's verification requirement, represents

an inexplicable change in position that deserves not even the

slightest level of judicial deference from this Court.

3. The EEOC’s Relation-Back Doctrine

Conflicts With the Agency’s Own Policy

Guidance on Title VII Charge Filing

In Section 2 of its new Compliance Manual on “Threshold

Issues,” ° the EEOC acknowledges that timely filing of a

charge is a jurisdictional prerequisite to investigation, barring

only extraordinary equitable considerations. It provides:

Ordinarily, a charge must be filed within the statutory

limitations period. The filing deadline can occasionally

be extended when equitable considerations demand or

when the parties agree to waive the deadline. . . . Under

Title VII . . . a charging party must file a charge with the

EEOC within either 180 or 300 days of the alleged

unlawful employment practice, depending upon whether

the alleged violations occurred in a jurisdiction that has a

state or local fair employment practices agency (FEPA)

fair employment practice laws, and, if so, the date of such

commencement and the name of the authority.

29 C.F.R. § 1601.1 1(a)-(e) (1965).

° http://www .eeoc gov/docs/threshold.html

16

with the authority to grant or seek relief... . Because

most jurisdictions have FEPAs, the limitations period

will usually be 300 days.

EEOC Compl. Man. § 2-IV, Timeliness (May 12, 2000)

(footnotes omitted). It provides further:

When a charge is filed with the Commission, the

assigned investigator ordinarily will determine whether

certain threshold requirements are satisfied before

considering the merits of the discrimination claims . . .

If a charge does not satisfy threshold requirements, it

should be dismissed.

EEOC Compl. Man. § 2-I, Overview (May 12, 2000) (foot-

notes omitted).

In its new enforcement guidance, the EEOC concedes that

in the absence of extraordinary equitable considerations or

express waiver by the parties of applicable filing deadlines,

the 180/300-day statutory timeframe for filing a Title VII

charge of discrimination may not be tolled or extended.

EEOC Compl. Man. § 2-IV(D), Extending the Timeframe for

Filing (May 12, 2000). As the agency notes, the doctrine of

equitable tolling may be applied where a charging party’s

“excusable lack of knowledge about the EEO process or the

alleged violation” caused the filing delay. /d.

Similarly, equitable estoppel may be used to excuse an

untimely filing attributable to an employer’s misconduct, on

which the charging party relied to his or her detriment in

failing to timely file a discrimination charge. /d. Finally, as

the EEOC’s guidance instructs, the 180/300-day charge filing

limitations period may be waived, by mutual agreement, in

order to facilitate private settlement negotiations. /d.

Significantly, nowhere in the guidance does the EEOC

suggest, as its procedural regulations purport to provide, that

a charge filing deadline may be extended to allow a charging

party the convenience of verifying, and therefore “perfect-

See — ee eee . .

17

ing,” a defective submission, regardless of the reason for the

delay. Moreover, unlike the EEOC’s regulations, none of the

equitable principles under which a charge filing deadline may

be extended alter the fundamental character of a charge,

which Congress plainly and expressly declared must be

submitted in writing and under oath or affirmation.

Nor do those principles relieve a charging party of his or

her responsibility to file a charge within the applicable time

limitations period. Rather, they provide an opportunity for a

reviewing court—not the EEOC itself—to excuse a party’s

noncompliance based on equitable considerations, which this

Court expressly has ruled are equally applicable to Title VII

discrimination charges as they are to other legal actions.

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

Because the EEOC’s relation-back regulation cannot be

reconciled either with its enforcement guidance and policy

regarding threshold Title VII charge filing requirements or

other provisions contained in the same regulatory scheme, it

is not entitled to any judicial deference under Skidmore.

Il. ALLOWING THE EEOC TO CIRCUMVENT

TITLE VII’S 300-DAY VERIFIED CHARGE

FILING REQUIREMENT WOULD LIMIT

EMPLOYERS’ ABILITY TO TIMELY ADD-

RESS, AND THEREFORE UNDERMINE

TITLE VII’S PRIMARY GOAL OF ERADI-

CATING, EMPLOYMENT DISCRIMINATION

Title VII expressly requires the EEOC to serve an

employer with notice of a charge of discrimination within ten

days of its filing date. 42 U.S.C. § 2000e-S(e)(1). The

statutory notice provision exists for good reason. “[T]}he

principal objective of the provision seems to have been to

provide employers fair notice that accusations of discrimin-

ation have been leveled against them and that they can soon

expect an investigation by the EEOC.” EEOC v. Shell Oil

Co., 466 U.S. 54, 74 (1984).

The EEOC ordinarily will not serve prospective

respondents with intake questionnaires or other preliminary

documents that have not been verified. Brief for the United

States and the Equal Employment Opportunity Commission

as Amici Curiae on Petition for a Writ of Certiorari, at 16-17.

Under the relation-back rule, verification of such sub-

missions—which the agency then will treat as “charges”~—is

permitted to occur outside of the statutory 180/300 day filing

limitations period. Since the regulation does not place time

limits on after-the-fact verification, a non-compliant charging

party could wait months, or years, to perfect an unverified

submission. “Carried to its logical conclusion, under the

EEOC’s interpretation of its regulation, it would never be too

late to verify a charge...” Balazs v. Liebenthal, 32 F.3d 151,

157 (4th Cir. 1994) (emphasis added).

In fact, the EEOC has investigated and even issued right to

sue notices on discrimination complaints that never were

verified. Danley v. Book-of-the-Month Club, Inc., 921 F.

Supp. 1352 (M.D. Pa. 1996), aff'd mem., 107 F.3d 861 (3d

Cir. 1997); Balazs v. Liebenthal, 32 F.3d 151 (4th Cir. 1994);

Vason v. City of Montgomery, 240 F.3d 905 (11th Cir. 2001).

In Danley v. Book-of-the-Month Club, Inc., for instance, the

plaintiff submitted an unverified correspondence to the EEOC

“indicating that she sought to lodge a formal complaint

against BOMC and requesting that her charge be filed with

the Pennsylvania Human Relations Commission.” 921 F.

Supp. at 1353. The EEOC did not provide the respondent

with notice of the discrimination complaint for over two

years, until the day that it issued the plaintiff a right-to-sue

letter. Jd.

Delaying notice of alleged discriminatory acts until well

after the fact deprives a respondent-employer of the

opportunity to detect and correct potentially discriminatory

employment practices in a timely and efficient manner, and

thus undercuts Title VII's primary gual of preventing

}

'

'

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19

unlawful discrimination. “Title VII is designed to encourage

the creation of antiharassment policies and effective

grievance mechanisms [which] would effect Congress’

intention to promote conciliation rather than litigation in the

Title VII context, and the EEOC’s policy of encouraging the

development of grievance procedures.” Burlington Indus. v.

Ellerth, 524 U.S. 742, 764 (1998) (citations omitted). The

EEOC’s relation-back regulation undermines the Act’s strong

“deterrent purpose” by impeding early detection and

resolution by respondents of potentially discriminatory

employment practices. /d.

Absent timely notice, respondents -also must defend

themselves against claims based on incidents that could have

occurred years earlier, for which they no longer possess

pertinent employment records. Many corporate record

retention policies, for instance, permit the destruction of

routine personnel forms and employment documents after a

set period of time. Even under the EEOC’s own record

retention regulations, an employer, unaware of the existence

of a discrimination claim, may purge information that it

ultimately may need to defend against the unknown claim.

29 C.F.R. § 1602.14. The EEOC’s regulations provide, in

relevant part:

Any personnel or employment record made or kept by

an employer (including but not necessarily limited to

requests for reasonable accommodation, application

forms submitted by applicants and other records having

to do with hiring, promotion, demotion, transfer, lay-off

or termination, rates of pay or other terms of compen-

sation, and selection for training or apprenticeship) shall

be preserved by the employer for a period of one year

from the date of the making of the record or the

personnel action involved, whichever occurs later. . . .

Where a charge of discrimination has been filed, or an

action brought by the Commission or the Attorney

20

General, against an employer under title [sic] VII or the

ADA, the respondent employer shall preserve all

personnel records relevant to the charge or action until

final disposition of the charge or the action.

29 C.F.R. § 1602.14. Thus, even the EEOC’s own reg-

ulations permit a respondent who otherwise has no

knowledge that a charge has been filed against it to destroy

relevant employment records after only a year.

Were the EEOC’s relation-back regulation permitted to

stand, employers would be faced with the unenviable choice

of destroying employment records, in accordance with the

EEOC’s record retention regulations and in the absence of

knowledge of a discrimination charge, or retaining,

indefinitely, literally thousands and thousands of pieces of

paper in the event a charge ever is filed.

CONCLUSION

For the foregoing reasons, the decision of the court below

should be affirmed in its entirety.

Respectfully submitted,

ANN ELIZABETH REESMAN

RAE T. VANN *

Counsel of Record

MCGUINESS NORRIS & WILLIAMS, LLP

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory Council

* Admitted Only in Connecticut

October 2001