# Amicus Curiae Brief — Edelman v. Lynchburg College

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0443%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 106

## Text

Jit

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0443%3A12. Public record. Not legal advice.