Amicus Curiae Brief — Fort Bend Cnty. v. Davis (No. 18-525)

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No. 18-525

=F ___—__—_—____________s

In the Supreme Court of the Gnited States

FORT BEND COUNTY, TEXAS, PETITIONER

vz.

LoIs M. DAVIS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

ERIC S. DREIBAND

Assistant Attorney General

JEFFREY B. WALL

JAMES L. LEE Deputy Solicitor General

Deputy General Counsel JONATHAN C.BOND

JENNIFER S. GOLDSTEIN Assistant to the Solicitor

Associate General Counsel General

ELIZABETH E. THERAN BONNIE I. ROBIN-VERGEER

Assistant General Counsel Dayna J. ZOLLE

GAIL S. COLEMAN Attorneys

Attorney Department of Justice

U.S. Equal Employment Washington, D.C. 20530-0001

Opportunity Commission SupremeCtBriefs@usdoj.gov

Washington, D.C. 20507 (202) 514-2217

QUESTION PRESENTED

Whether the requirement in Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.,

to file a charge with the Equal Employment Oppor-

tunity Commission is a jurisdictional prerequisite to

suit that is immune to ordinary principles of forfeiture

and waiver.

(1)

TABLE OF CONTENTS

Page

Interest of the United States...........ccssssssesscssssesrssssessrssessesesenses 1

Statutory and regulatory provisions involved .............00000008 2

BID vactniesiareriiinmnctsternnitesadtennereetmnttesemdammenemonenciatnenieeies 2

Or IIIS, cs rsscsnecenisnennnsiecniatesssnstounnenemeniscesteensssseeties 8

Argument:

Title VII's charge-filing requirement is not a

jurisdictional prerequisite tO SUit ........csseserreeerseeeneees 10

A. Under this Court’s clear-statement rule,

Title VII's charge-filing requirement is not

jurisdictional because Congress did not clearly

A i iiiiiiaieniniiniiictdnticiiiiaipistidiepininenien 11

1. A prerequisite to relief is not jurisdictional

unless Congress clearly states that it is......... 11

2. Title VII's text and context do not clearly

indicate that the charge-filing requirement

Be i ecictnstasiesnnesitcmnniotansninmsicgrncccccss 15

B. Petitioner’s contention that Title VII's charge-

filing requirement is an “exhaustion” rule

exempt from the clear-statement rule lacks

C. The statutory purposes do not require treating

Title VII's charge-filing requirement as

SITET eccanssteinnenernsimssenunnincianteveunnenesncesemenssneens 29

COMER ciccceencnstpnentnennnvicsicinpsininnisiernnsstnpinsesneneneenseenenanes 34

Appendix — Statutory and regulatory provisions ............0 la

TABLE OF AUTHORITIES

Cases:

Air Courier Conference of Am. v. American Postal

Workers Union, AFL-CIO, 498 U.S. 517 (1991) .......... 16

Albemarle Paper Co. v. Moody,

Br ee Gr critirndinntimnticimennniinamnens 19, 20

Cases—Continued: Page

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)...... 21

Alexander v. Sandoval, 532 U.S. 275 (2001) ......ccccceceeees 16

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)............ passim

Arizona ex rel. Horne v. Geo Grp., Inc.,

816 F.3d 1189 (9th Cir. 2016),

cert. denied, 137 S. Ct. 623 (2017) ........ssccseeeseeerseereeeeenes 31

Baldwin Cnty. Welcome Ctr. v. Brown,

Oe ee ie iacchesttetaccedentisdemnniccicserdecinnctesataension 33

Bell v. Hood, 327 U.S. 678 (1946).......scscssscssesssssesseeesesssees 18

Bowles v. Russell, 551 U.S, 205 (2007) ......cccssercesereeeereeeneeee 12

Chandler v. Roudebush, 425 U.S. 840 (1976). .....ccceeeeeee 26

Day v. McDonough, 5AT U.S. 198 (2006).......ccccccceceeeeeneees 14

EEOC v. Commercial Office Prods. Co.,

ee NE tidtdiecitianeititiiltitaniicininntenonenimeninnieen 3

EEOC vy. Shell Oil Co., 466 U.S. 54 (1984)... 2, 4, 29

EEOC vy. Sterling Jewelers Inc.,

801 F.3d 96 (2d Cir. 2015),

cert. denied, 137 S. Ct. 47 (2016) ...........cscssesssssrsseseessseeenesees 4

Elgin v. Department of the Treasury,

Be We Fe CE ceestcenaakaciitenescesrannsecincenssemnntensstetennsemesnins 27

EPA v. EME Homer City Generation, L.P.,

ee ee NE eilaccncisectienecnncicaneneseerreenanacteeee 13, 21, 24

Franks v. Bowman Transp. Co.,

ee I biiiiccintireincesinscinnsmnenneesianesssassesnseene 19, 20

General Tel. Co. of the Nw., Inc. v. EEOC,

Ce a ee ictinttcictnecrnintsttantiitcinennion 4, 5, 28, 31

Gonzalez v. Thaler, 565 U.S. 134 (2012). ........ccccccceeeees 12, 13

Hallstrom v. Tillamook Cnty., 493 U.S. 20 (1989) .......... 14

Hamer v. Neighborhood Hous. Servs. of Chi.,

BED Ts Daa. Tie Ger a Pcsccnsnctesiecscccnesesrcenssenscesonscese 12, 13,1 , 24

Henderson v. Shinseki, 562 U.S. 428 (2011) .......ccccccceceeees 13

Cases—Continued: Page

John R. Sand & Gravel Co. v. United States,

Be es a icnisciesasncsinepsenatnirniectccnaininsennpstensoninen 12

Jones v. Bock, 549 U.S. 199 (2007) 21, 24

Josephs v. Pacific Bell, 443 F 3d 1050 (9th Cir. 2006)....... 33

Kontrick v. Ryan, 540 U.S. 443 (2004) .......cccccccecceeeeeeeenes 14

Mach Mining, LLC v. EEOC,

En eee 2, 29, 30

Mathews v. Eldridge, 424 U.S. 319 (1976) ........0eseees 24, 25

McDonnell Douglas Corp. v. Green,

Se ie ee nitetecaernnsenitnicersssnemnennanninapesncencsnnasesse 20

McKee v. McDonnell Douglas Tech. Servs. Co.,

ee ee el I cacitesenesennnincersenstascscssecesetocosens 33

National R.R. Passenger Corp. v. Morgan,

Se eis St Sa nctccinsrennccntncnticarsstinicnsssesenesstnernseanasennscente 33

Nutraceutical Corp. v. Lambert, 139 8. Ct. 710 (2019) ..... 14

Occidental Life Ins. Co. v. EEOC,

a aicbienidiitittiianitidinnctitnnimname 4,5

Patchak v. Zinke, 138 8. Ct. 897 (2018) .....cccccseeseeeeee 17, 24

Reed Elsevier, Inc. v. Muchnick,

| ee passim

Rockwell Int'l Corp. v. United States,

a Ct OE Recesiiciindeniebincinicnentceieesrcnnnsenievmnenionnts 16, 17

Sebelius v. Auburn Reg! Med. Ctr.,

Ea 11, 13, 33

Sims v. Apfel, 580 U.S. 103 (2000) .......:sesesseersveseeneeeseennsnenns 28

Steel Co. v. Citizens for a Better Env't,

523 U.S. 83 (1998) ......... a 11, 16, 18, 21, 33

Thompson v. North Am. Stainless, LP,

Se i: PD ccercsncneenesetsncsnenicnscenrnasconsesegnnessenesesonmne 16

Thunder Basin Coal Co. v. Reich,

ee I ibcisiciertrcietrnattnaiennndncsinsteiinbieniciniannatiag’s 9, 27

Cases—Continued: Page

Union Pac. R.R. vy. Brotherhood of Locomotive

Eng’rs & Trainmen Gen. Comm. of Adjustment,

ee ND tanithertntencitndiiahesttanihinitacilisadinisipsiantation 13, 21, 24

United States v. Dalm, 494 U.S. 596 (1990) ............ccccec0 22

United States v. Kwai Fun Wong,

BE . Ch, TE GID ccccceccescctescssesvcscnsscresses 12, 13, 15, 19, 24

Woodford v. Ngo, 548 U.S. 81 (2006)........... 9, 21, 24, 26, 27

Zipes v. Trans World Airlines, Inc.,

8 eee 9, 18, 18, 20, 21

Statutes and regulations:

Civil Rights Act of 1964, Pub. L. No. 88-352,

Tit. VII, 78 Stat. 253 (42 U.S.C. 20000 et 80g.) ......ccccceeeee 1

De NN I arreisceucicsepinipnsisgnivnenseinenssisietstninenstions 4

Oe nricidncinceectntamenenenpindcinieninabetnansvins 4,5

I <iscenindinnditniiinnginnstninestaionennniianda 4

ee 2

ee eR itrtnnsatipannemcnmenimaininindan 2

i eritcrinccieneemnisinsionnisssntnentontiniins 22, 23, la

es ee cstrercesetcncncesastencineniienintshinndiiihs 2, 1a

42 U.S.C. 2000@-5(D)............seccereseeecees 1, 2, 3, 5, 26, 30, la

I iciicicrniiincnesctsiersscsenennsimiinntinnadaien 3, 3a

42 U.S.C. 20000-5(0)(1) .....csccscssesesssecsseeserseseees passim, 4a

42 U.S.C. 2000@-5(f)(1).......ccccsseeeeserssseesssseeees passim, 6a

42 U.S.C. 20000-5(f)(3)........ssseseereesservees 4, 5, 10, 18, 19, 8a

ic irrntninictesenninmenenignnnniens 4, 29

i cicisccenssmvnbeninsientnmiananeeiainnanl 2

ee ee entctrereteinretanscnnemsesinsentiinics 22, 23, 15a

I ceresiiccenicsnaciiniternisactevenniceniiantaii 5, 15a

42 U.S.C. 2000 0-16(C) ....0cscecersereressrsseeserereees .22, 23, 25, 18a

42 U.S.C. 2000@-16(D)-(f) .....csssssesssssssrsseessesnensenensneens 5, 16a

Vil

Statutes and regulations—Continued: Page

Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, 86 Stat. 108 ..........ssssscssesssssessessscserenees 5

False Claims Act, 31 U.S.C. 3729 et 8€q. .........ccccccecseeeeee 16

31 U.S.C. 3730(€)(4)(A) (2006).......000ssseseseesssserserssseseseenes 17

RG Sd IED inticerassicreccinesinastincnetennincnimnstnennnsecesicenenneaiens 13

a ta BIE eitnicpencerseneteceneniivennnieniedi 4, 10, 17, 18, 25, la

Bi: BE iedindncrirntitamencnipnimenanchonenincmnmanannninaiite 25

ee ctiristetciesennernecentcenmmmenemeieanes 25

I hitintetrnitsteierncnnieiintmsmnmneinineetian 25

ee 21, 24, 26

29 C.F.R. Pt. 1601:

Be iinninnpreninnitintemnmenntninnunannets 2, 20a

| eee 2, 3, 20a

es IED ccccnstemrerrssersevesctecseossnocnssemasnenes 3, 21a

Se BIE cscccsssocerscesnenseseseenoesnsnseensininnntente 3, 24a

Be eI ixscicseresssesescecneqneeseyeenetinniantnstentnettt 30, 27a

es I ia cciasiserscnscerscorssecitncnertssmnsnisreeneninnsiapeinitel 3

EE TERS a eT RE 5, 28a

ee eR icrecsccscnrsnnpeenicmennenseiannenieoenti 3, 28a

Miscellaneous:

EEOC:

Fair Employment Practices Agencies (FEPAs)

and Dual Filing, https://www.eeoc.gov/

employees/fepa.cfm (last visited Apr. 3, 2019) ......... 3

Title VII of the Civil Rights Act of 1964 Charges,

FY 1997-F Y 2017, https://www.eeoc.gov/

eeoc/statistics/enforcement/titlevii.cfm

(last visited Apr. 3, 2019) ........ssssssssssssessssessersenees 30

Donald R. Livingston & Reed L. Russell, EEOC

Litigation and Charge Resolution (2€ ed. 2014) 0.0... 3

In the Supreme Court of the United States

No. 18-525

FORT BEND COUNTY, TEXAS, PETITIONER

LOIS M. DAVIS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether the require-

ment in Title VII of the Civil Rights Act of 1964 (Title

VII), as amended, 42 U.S.C. 2000e et seq., to file a charge

of discrimination with the Equal Employment Oppor-

tunity Commission (EEOC or Commission) is a jurisdic-

tional prerequisite to suit. The EEOC investigates

charges of employment discrimination under Title VII

and seeks to eliminate unlawful practices through infor-

mal methods. 42 U.S.C. 2000e-5(b). The EEOC and

the Attorney General also have authority to bring civil

actions against private employers and state and local

governmental employers, respectively, for Title VII

violations. 42 U.S.C. 2000e-5(f)(1). The United States

has a substantial interest in the proper interpretation

of Title VII.

(1)

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are repro-

duced in an appendix to this brief. App., infra, la-31a.

STATEMENT

1. Title VII prohibits discrimination in employment

based on race, color, religion, sex, or national origin.

42 U.S.C. 2000e-2. It establishes a “detailed multi-step

procedure” to enforce that prohibition. Mach Mining,

LLC v. EEOC, 135 8. Ct. 1645, 1649 (2015). The process

“generally starts when ‘a person claiming to be aggrieved’

files a charge of an unlawful workplace practice with the

EEOC,” ibid. (citation omitted), which Congress charged

with investigating and seeking to prevent discrimination,

42 U.S.C. 2000e-4(a), 2000e-5(a) and (b).

a. A Title VII charge “is not the equivalent of a com-

plaint initiating a lawsuit.” HEOC v. Shell Oil Co.,

466 U.S. 54, 68 (1984). A charge filed by an individual

merely notifies the EEOC of the alleged discrimination,

providing a starting point for the EEOC’s investigation.

Ibid. The statute prescribes only that “[c]harges shal!

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). Pursuant to statutory

rulemaking authority, 42 U.S.C. 2000e-12(a), the EEOC

has further specified that a charge should contain “[a}

clear and concise statement of the facts, including per-

tinent dates, constituting the alleged unlawful employ-

ment practices”; the employer’s contact information; and

a statement of whether the charging party has insti-

tuted proceedings with a state or local agency. 29 C.F .R.

1601.12(a). Nonetheless, a charge is adequate if it con-

tains “a written statement sufficiently precise to iden-

tify the parties, and to describe generally the action or

practices complained of.” 29 C.F.R. 1601.12(b).

Section 2000e-5(e)(1) of Title VII provides that “[a}

charge under this section shall be filed” with the EEOC

“within one hundred and eighty days after the alleged

unlawful employment practice occurred.” 42 U.S.C.

2000e-5(e)(1). If the alleged discrimination occurred in a

State or political subdivision that has its own agency with

authority to grant or seek relief, Title VII instead directs

the individual alleging discrimination to commence pro-

ceedings with that agency first. See 42 U.S.C. 2000e-5(c).

If the state or local proceedings do not resolve the mat-

ter, the individual has “three hundred days after the

alleged unlawful employment practice occurred,” or

30 days after being notified that those proceedings have

been “terminated”—“whichever is earlier”—to file a

charge with the EEOC. 42 U.S.C. 2000e-5(e)(1). In prac-

tice, however, an individual typically need only file a sin-

gle charge with either the EEOC or the state or loca!

agency. Pursuant to EEOC regulations and workshar-

ing agreements with state and local agencies, whichever

entity receives the charge will also file it with the other.

See 29 C.F.R. 1601.13(a)(3) and (b)(1); EEOC, Fair

Employment Practices Agencies (FEPAs) and Dual Fil-

ing, https://www.eeoc.gov/employees/fepa.cfm; EEOC

v. Commercial Office Prods. Co., 486 U.S. 107, 112 (1988).'

Upon receiving a charge, the EEOC must notify

the employer and investigate the allegations. 42 U.S.C.

2000e-5(b). The EEOC has broad discretion regarding

' An individual typically may amend an existing charge in certain

circumstances until the EEOC concludes its processes; the amend-

ment relates back to the date of the original filing if it is related to or

grows out of the subject matter of the original charge. See 29 C.F.R.

1601.12(b), 1601.19(a), 1601.28(a)(3); see also Donald R. Livingston &

Reed L. Russell, EEOC Litigation and Charge Resolution 161 (2d ed.

2014).

the nature and extent of its investigation. See, e.g.,

EEOC v. Sterling Jewelers Inc., 801 F.3d 96, 98 (2d Cir.

2015), cert. denied, 137 S. Ct. 47 (2016). It also may obtain

access to “any evidence of any person being investi-

gated” that is “relevant to the charge under investiga-

tion.” 42 U.S.C. 2000e-8(a).

b. Congress originally hoped employers would comply

voluntarily with Title VII. Shell Oil Co., 466 U.S. at 77.

As first enacted, Title VII authorized the EEOC only to

investigate charges and to engage in informal concilia-

tion and persuasion. Occidental Life Ins. Co. v. EEOC,

432 U.S. 355, 358 (1977). If those efforts failed, the EEOC

lacked enforcement authority. /d. at 358-359. Instead,

the aggrieved person could file suit against the employer.

Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII,

§ 706(e), 78 Stat. 260. Because in 1964 the “umbrella pro-

vision for federal question jurisdiction,” 28 U.S.C. 1331,

included an amount-in-controversy requirement, Con-

gress also enacted in Title VII a separate provision

granting district courts jurisdiction over “‘actions

brought under this subchapter.’”” Arbaugh v. Y & H

Corp., 546 U.S. 500, 505-506 (2006) (quoting 42 U.S.C.

2000e-5(f)(3)); see § 706(f), 78 Stat. 260. The Attorney

General could intervene in cases of general public

importance and could bring his own suits challenging

patterns or practices of discrimination. §§ 706(e), 707(a),

78 Stat. 260-261.

By 1972, however, Congress recognized that the

“failure to grant the EEOC meaningful enforcement

powers hal[d] proven to be a major flaw in the operation

of Title VII.” General Tel. Co. of the Nw., Inc. v. EEOC,

446 U.S. 318, 325 (1980) (General Telephone) (citation

omitted). Accordingly, Congress amended Title VII to

establish the current enforcement scheme. Occidental

Life Ins. Co., 432 U.S. at 359; see Equal Employment

Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103.

The 1972 amendments preserved the EEOC’s adminis-

trative role and retained the private right of action, but

they also granted the EEOC authority to bring suit “to

secure more effective enforcement of Title VII.” Gen-

eral Telephone, 446 U.S. at 325; accord Occidental Life

Ins. Co., 432 U.S. at 368. The amendments did not alter

Title VII’s jurisdictional provision. Compare 42 U.S.C.

2000e-5(f)(3), with § 706(f), 78 Stat. 260.

As relevant here, Title VII currently provides that,

if the EEOC finds “reasonable cause to believe that the

charge is true,” it must first “endeavor to eliminate

[the] alleged unlawful employment practice by informal

methods of conference, conciliation, and persuasion.”

42 U.S.C. 2000e-5(b). If the EEOC is unable to secure a

conciliation agreement it finds acceptable with a private

employer named in a charge, the EEOC may sue the

employer. 42 U.S.C. 2000e-5(f)(1). If the employer is a

state or local government, the EEOC “shall refer the case

to the Attorney General,” who may bring a civil action.

Ibid.’

If the EEOC does not find that the allegations have

merit, it must dismiss the charge and notify the individ-

ual of her right to sue. 42 U.S.C. 2000e-5(b) and (f)(1).

If the EEOC (or Attorney General for public employ-

ers) has neither brought suit nor reached a resolution

within 180 days after the charge is filed, the individual

is entitled to a right-to-sue notice upon request. 42 U.S.C.

2000e-5(f)(1); see 29 C.F.R. 1601.28(a)(2) (EEOC may

® Title VII also prohibits employment discrimination by the fed-

eral government. 42 U.S.C. 2000e-16(a). A separate procedural

regime, not at issue here, governs the processing and adjudication

of claims by federal employees. 42 U.S.C. 2000e-16(b)-(f).

issue right-to-sue letter sooner if it certifies that it can-

not complete investigation in 180 days).

2. a. In 2007, petitioner hired respondent as a super-

visor in its information-technology department. Pet.

App. 17a n.2. In 2010, respondent filed a complaint with

petitioner’s human-resources department alleging that

another employee had sexually harassed and assaulted

her. /bid. Petitioner placed respondent on leave while it

investigated her complaint. /bid. According to respond-

ent, when she returned from leave the following month,

her new supervisor began retaliating against her by

reducing and changing her workload. /bid.; J.A. 77-78, 80.

In February 2011, respondent submitted an intake

questionnaire alleging employment discrimination to the

Texas Workforce Commission (State Commission), which

has a worksharing agreement with the EEOC. Pet. App.

19a; J.A. 73-74. The following month, respondent filed a

formal charge with the State Commission, which treated

that charge as filed with the EEOC on the date respond-

ent submitted the intake questionnaire. J.A. 80. Respon-

dent’s charge stated that “[she] believe[d] [she] hajd]

been discriminated against *** because of [her]

gender/sex, female, and in retaliation for [her] complaint

of harassment.” Jbid. She also checked boxes indicating

that she was complaining of discrimination based on

“Sex” and “Retaliation.” /bid. (capitalization altered).

b. In March 2011, petitioner requested that all

information-technology employees report to work one

weekend in July. Pet. App. 18a n.2. Respondent informed

her supervisor she could not work that Sunday due to a

religious commitment at her church, and she arranged

for a replacement. /d. at 18a n.2, 19a. Her supervisor

refused to approve her absence. /bid. Respondent

attended the church event instead of coming to work, and

petitioner terminated her employment. /bid.

Respondent then sought to amend her pending charge

by modifying her intake questionnaire. Pet. App. 19a-20a;

see .1.A. 71. In the field labeled “Employment Harms or

Actions,” she checked boxes for “Discharge” and “Rea-

sonable Accommodations,” and near the box labeled

“Other” she handwrote “Religion.” J.A. 101; ef. J.A. 74.°

The State Commission later notified respondent that it

had decided to dismiss her charge because “it cannot be

established that the employer has discriminated against

you based on Sex, Retaliation, or any other reason pro-

hibited by the laws we enforce.” J.A. 92. In December

2011, the Department of Justice issued respondent a

right-to-sue letter. Jd. at 105-106; Pet. App. 21a.

3. In 2012, respondent brought this suit against

petitioner, alleging (as relevant) retaliation and reli-

gious discrimination under Title VII. Pet. App. 2a, 16a.

The district court granted summary judgment for peti-

tioner. Jd. at 2a-8a. The court of appeals affirmed on

the retaliation claim but reversed and remanded on the

religious-discrimination claim. /d. at 3a. This Court

denied certiorari. 135 8. Ct. 2804.

On remand, respondent amended her complaint to

allege only religious discrimination. Pet. App. 17a-19a.

Petitioner moved to dismiss for lack of jurisdiction,

arguing for the first time that respondent had failed to

include a claim for religious discrimination in her charge.

Id. at 21a-22a. The district court dismissed the suit for lack

of jurisdiction, concluding that the charge-filing require-

ment is jurisdictional and nonwaivable. /d. at 24a-38a.

® The court of appeals reserved judgment on whether respondent

successfully amended her charge to allege religious discrimination.

Pet. App. 15a n.5. The United States takes no position on that issue.

4. The court of appeals again reversed. Pet. App.

la-15a. It first concluded that the charge-filing require-

ment is not jurisdictional, relying on circuit precedent.

Id. at 6a-9a. The court further explained that this

Court’s precedent supported that conclusion. /d. at

Ya-12a. In Arbaugh, the court of appeals observed, this

Court “articulated a ‘readily administrable bright line’”

rule, under which “‘a threshold limitation’” is “‘jurisdic-

tional’” only “‘{i}f the Legislature clearly states that’” it

is. /d. at 9a-10a (quoting Arbaugh, 546 U.S. at 515-516).

Applying that test, the court of appeals concluded that

“Congress did not suggest—much less clearly state—

that Title VII’s administrative exhaustion requirement

is jurisdictional.” Jd. at 10a.

The court of appeals concluded that failure to comply

with Title VII’s charge-filing requirement is an affirma-

tive defense. Pet. App. 14a. In this case, the court found

it “abundantly clear that [petitioner] ha[d] forfeited its

opportunity to assert” that defense by “wait[ing] five

years and an entire round of appeals all the way to the

Supreme Court” before raising it. Jd. at 14a-15a.'

SUMMARY OF ARGUMENT

Title VII’s charge-filing requirement is a nonjuris-

dictional prerequisite subject to forfeiture and waiver.

A. In recent years, this Court has sharpened the dis-

tinction between jurisdictional requirements that limit

federal courts’ adjudicatory power and nonjurisdictional

rules that merely prescribe requirements for relief or pro-

cedures for processing claims. The Court has adopted a

“readily administrable bright line” test: a requirement is

* Judge Jones concurred in the judgment, Pet. App. la n.*, but

did not issue a separate opinion.

“jurisdictional” only if Congress “clearly states” that it is.

Arbaugh v. Y & H Corp., 546 U.S. 500, 515-516 (2006).

Straightforward application of Arbaugh’s bright-line

test shows that Title VII’s charge-filing requirement

is not jurisdictional. Neither Title VII’s provision

that imposes the charge-filing requirement, 42 U.S.C.

2000e-5(e)(1), nor the provision making it a precondition

to filing suit, 42 U.S.C. 2000e-5(f)(1), “speak[s] in juris-

dictional terms.” Arbaugh, 546 U.S. at 515 (citation omit-

ted). Congress established jurisdiction over Title VII

suits in two other, separate provisions; neither makes

jurisdiction contingent on filing a charge with the EEOC.

This Court’s precedent powerfully confirms that conclu-

sion. The Court held in Zipes v. Trans World Airlines,

Inc., 455 U.S. 385 (1982), that the requirement to file a

timely charge before bringing suit is not jurisdictional

for reasons that apply equally to the requirement to file

a charge at all. Subsequent decisions addressing other

analogous requirements reinforce that conclusion.

B. Petitioner errs in contending (Br. 15-40) that the

clear-statement rule is inapplicable here because the

charge-filing requirement is an “exhaustion” requirement.

The language and logic of this Court’s decisions leave no

doubt that the clear-statement rule applies to exhaustion

requirements. In any event, Title VII’s requirement to

file a charge with the EEOC is not “in any sense an exhaus-

tion provision.” Woodford v. Ngo, 548 U.S. 81, 98 (2006).

The EEOC does not render decisions on charges that

courts review. Petitioner's reliance on cases addressing

whether Congress intended a process of administrative

adjudication and judicial review to be exclusive is there-

fore misplaced. Cf., e.g., Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994). Congress did not channel! Title VII

claims to the EEOC for adjudication. It merely directed

individuals alleging employment discrimination to give

the EEOC a right of first refusal before bringing suit.

C. Petitioner also errs in contending that the charge-

filing requirement must be deemed jurisdictional because

it advances important statutory purposes. The Court

has held that a requirement is not “jurisdictional merely

because it promotes important congressional objectives.”

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 169 n.9

(2010). In any event, treating the charge-filing require-

ment as jurisdictional is unnecessary to further Con-

gress’s aims. Defendants can and do seek dismissal for

failure to file a charge, giving plaintiffs a powerful incen-

tive to comply. And the costs of deeming the charge-

filing requirement jurisdictional—including burdens

imposed on courts and unfair outcomes tor blindsided

private litigants—outweigh any benefits.

ARGUMENT

TITLE VIP'S CHARGE-FILING REQUIREMENT IS NOT A

JURISDICTIONAL PREREQUISITE TO SUIT

Under the “bright line” rule the Court has articulated,

a requirement is jurisdictional only if Congress “clearly

states” that it is. Arbaugh v. Y & H Corp., 546 U.S. 500,

515-516 (2006). That clear-statement rule resolves this

case. Congress conferred jurisdiction over Title VII suits

in 28 U.S.C. 1331 and 42 U.S.C. 2000e-5(f)(3). Nothing in

Title VII's text or context clearly indicates that failure to

comply with Title VII's charge-filing requirement divests

federal courts of that jurisdiction.

Unable to satisfy the clear-statement rule, petitioner

urges the Court to depart from it. Petitioner spends the

bulk of its brief (Br. 15-40) inviting the Court to make

an exception to Arbaugh's bright-line rule for “exhaus-

tion” requirements, Pet. Br. 15, invoking cases that

addressed statutes that channeled particular claims to

an exclusive avenue of administrative and judicial review.

This Court’s clear-statement cases, however, foreclose

petitioner’s proposed carve-out. In any event, Title VII's

charge-filing requirement is not an exhaustion require-

ment, and Title VII does not resemble statutes that

require presenting a claim to an agency for a decision

before seeking judicial review of that decision. Peti-

tioner’s alternative contention (Br. 27-32, 45-47) that the

charge-filing requirement serves purposes that are too

weighty to be waivable is also, at bottom, an invitation to

make an ad hoe exception to the Court’s categorical

clear-statement test. The Court should reject peti-

tioner’s invitations to blur Arbaugh’s bright-line rule.

A. Under This Court's Clear-Statement Rule, Title VII's

Charge-Filing Requirement Is Not Jurisdictional Because

Congress Did Not Clearly State Otherwise

1. A prerequisite to relief is not jurisdictional unless

Congress clearly states that it is

a. “Characterizing a rule as jurisdictional renders

it unique in our adversarial system” and carries signifi-

cant consequences. Sebelius v. Auburn Reg'l Med. Ctr.,

568 U.S. 145, 153 (2013) (Auburn). A jurisdictional defect

“ean be raised at any time, even by a party that once con-

ceded the tribunal’s subject-matter jurisdiction,” in turn

causing a “waste of adjudicatory resources” and “dis-

turbingly disarm[ing] litigants.” /bid. And such a defect

must be raised by courts sua sponte, even on appeal.

Arbaugh, 546 U.S. at 515. Confusion about the meaning

of “jurisdiction” exacerbates those consequences. “‘Juris-

diction,’ this Court has observed, ‘is a word of many, too

many, meanings.’” /d. at 510 (quoting Steel Co. v. Citi-

zens for a Better Env't, 523 U.S. 83, 90 (1998)). Courts

“halve] sometimes been profligate in [their] use of the

term” and historically were “less than meticulous” in dis-

tinguishing jurisdictional limits from other prerequisites

to relief. 7d. at 510-511.

“This Court has endeavored in recent years to ‘bring

some discipline’ to the use of the term ‘jurisdictional’”

by “press[ing] a stricter distinction between truly juris-

dictional rules, which govern ‘a court’s adjudicatory

authority,’ and nonjurisdictional ‘claim-processing rules,’

which do not.” Gonzalez v. Thaler, 565 U.S. 134, 141

(2012) (citations omitted). In Arbaugh, it adopted a

“readily administrable bright line” test, 546 U.S. at 516,

which it has repeatedly reaffirmed: “A rule is jurisdic-

tional ‘if the Legislature clearly states that a threshold

limitation on a statute’s scope shall count as jurisdic-

tional.’"” Hamer v. Neighborhood Hows. Ser * of Chi.,

138 8S. Ct. 13, 20 n.9 (2017) (quoting Gonzalez 65 U.S.

at 141, in turn quoting Arbaugh, 546 U.S. at 515) (brack-

ets omitted).

Congress need not “incant magic words” to supply

a clear statement. United States v. Kwai Fun Wong,

135 8. Ct. 1625, 1632 (2015) (citation omitted). As in

construing any statute, courts should consider the

“[s]tatutory context,” id. at 1633, “including this Court’s

interpretation of similar provisions in many years past,”

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168

(2010); see John R. Sand & Gravel Co. v. United States,

552 U.S. 130, 133-139 (2008); Bowles v. Russell, 551 U.S.

205, 208-215 (2007). But “traditional tools of statutory

construction must plainly show that Congress imbued

a procedural bar with jurisdictional consequences.”

Wong, 135 S. Ct. at 1632. The Court has thus aptly

labeled Arbaugh’'s test a “clear-statement rule.” Hamer,

138 S. Ct. at 20 n.9; accord Wong, 135 S. Ct. at 1632;

Gonzalez, 565 U.S. at 142.

Many of the Court's cases applying the clear-statement

rule have addressed time limits for pursuing administra-

tive or judicial relief. E.g., Wong, 135 8. Ct. at 1631-1633;

Auburn, 568 U.S. at 153-155; Henderson v. Shinseki,

562 U.S. 428, 441 (2011). In that setting, it is especially

“clear and easy to apply: Ifa time prescription govern-

ing the transfer of adjudicatory authority from one Article

III court to another appears in a statute, the limitation is

jurisdictional; otherwise, the time specification fits within

the claim-processing category.” Hamer, 138 S. Ct. at 20

(citation omitted). But Arbaugh’s “clear-statement rule”

applies equally “[ijn cases not involving the timebound

transfer of adjudicatory authority from one Article III

court to another.” /d. at 20 n.9. The Court has applied it

to (and found nonjurisdictional) Title VII's provision lim-

iting its coverage to employers with at least 15 employees,

Arbaugh, 546 U.S. at 510-516; the requirement to register

a copyright (or be refused registration) before suing

for infringement, Reed Elsevier, 559 U.S. at 160-169

(addressing 17 U.S.C. 411(a)); the requirement that only

objections to an Environmental Protection Agency clean-

air regulation “raised with reasonable specificity” during

the rulemaking may be asserted in litigation, EPA v.

EME Homer City Generation, L.P., 572 U.S. 489, 511-512

(2014) (citation omitted); the requirement that parties to

certain railroad labor disputes “attempt settlement ‘in

conference’” before arbitrating, Union Pac. R.R. vy.

Brotherhood of Locomotive Eng’rs & Trainmen Gen.

Comm. of Adjustment, 558 U.S. 67, 81-85 (2009) (Union

Pacific); and the requirement that a certificate of appeal-

ability in habeas proceedings specify the issue on which

the court finds a substantial showing of the denial of a con-

stitutional right, Gonzalez, 565 U.S. at 140-145. The test

also applies regardless of whether a requirement is “con-

sidered an element of” the plaintiff’s “claim” or instead

a “prerequisite to initiating a lawsuit.” Reed Elsevier,

559 U.S. at 165-166.

b. Concluding that a requirement is nonjurisdictional

means that, like most other requirements or defenses,

it “ean be waived or forfeited by an opposing party.”

Nutraceutical Corp. v. Lambert, 139 8. Ct. 710, 714

(2019); see Kontrick v. Ryan, 540 U.S. 448, 456 (2004).

And because nonjurisdictional requirements do not

implicate courts’ authority, courts “are under no obliga-

tion to raise” a nonjurisdictional issue sua sponte. Day

v. McDonough, 547 U.S. 198, 205 (2006); ef. Arbaugh,

546 U.S. at 514.

Deeming a requirement nonjurisdictional, however,

“does not render it malleable in every respect.” Nutra-

ceutical, 139 S. Ct. at 714. Although this case does not

present the question, some nonjurisdictional require-

ments are subject to exceptions even when timely

asserted—such as equitable tolling of limitations periods

—while others are “‘mandatory,’” i.e., “‘unalterable’ if

properly raised by an opposing party.” /bid. (citation

omitted); see id. at 714-715 (deadline for appealing class

certification is nonjurisdictional but mandatory and

immune to equitable tolling); Hallstrom v. Tillamook

Cnty., 493 U.S. 20, 25-31 (1989) (requirement to give

notice to certain entities before suing was mandatory,

regardless of whether it was jurisdictional). Moreover,

although federal courts are “not obliged” to address

mandatory but nonjurisdictional defects on their own

initiative when the parties do not raise them, they may

have discretion to do so. Day, 547 U.S. at 209

(“[D]istrict courts are permitted, but not obliged, to

consider, sua sponte, the timeliness of a state prisoner’s

habeas petition.”).

2. Title VII's text and context do not clearly indicate

that the charge-filing requirement is jurisdictional

a. Straightforward application of Arbaugh’s bright-

line rule demonstrates that Title VII’s charge-filing

requirement is not a jurisdictional prerequisite to suits

brought under 42 U.S.C. 2000e-5(f)(1), and therefore is

subject to ordinary principles of forfeiture and waiver.

Title VII’s text contains no “clear statement” that the

requirement limits subject-matter jurisdiction. Wong,

135 S. Ct. 1632. The provision that requires filing a

charge (and sets the deadline) “does not speak in juris-

dictional terms or refer in any way to the jurisdiction

of the district courts.” /d. at 1633 (quoting Arbaugh,

546 U.S. at 515). That provision, 42 U.S.C. 2000e-5(e)(1),

states in relevant part: “A charge under this section

shall be filed within one hundred and eighty days after

the alleged unlawful employment practice occurred,” or

within 300 days if the individual first sought relief from

a state or local agency. /bid. That text and the rest of

the provision address only proceedings before the

EEOC, not the scope of courts’ adjudicatory authority.

Likewise, the provision on which petitioner focuses,

42 U.S.C. 2000e-5(f)(1), says nothing about the “power

of the court” to decide Title VII claims, but addresses

only the “rights or obligations of the parties.” Reed

Elsevier, 559 U.S. at 161 (citations omitted). Section

2000e-5(f)(1) provides (with irrelevant exceptions) that,

“li}f within thirty days after a charge is filed with the

Commission * * * , the Commission has been unable to

secure from the respondent a conciliation agreement

acceptable to the Commission, the Commission may

bring a civil action against any respondent” other than

state or local governments. 42 U.S.C. 2000e-5(f)(1). It

similarly authorizes the Attorney General to sue if the

defendant is a state or local government. /bid. It fur-

ther provides that, “if a charge filed with the Commis-

sion *** is dismissed by the Commission”—or if,

within a specified period, neither the EEOC nor the

Attorney General has filed suit—“a civil action may be

brought against the respondent named in the charge

*** by the person claiming to be aggrieved.” /bid.

Section 2000e-5(f)(1)’s text thus addresses who has a

cause of action to sue for a Title VII violation, and

against whom. See Thompson v. North Am. Stainless,

LP, 562 U.S. 170, 175-176 (2011). “[A! question whether

Congress intended to allow a certain cause of action

against” a particular defendant “is not a question of

jurisdiction”; it is a merits issue. Air Cowrier Conference

of Am. v. American Postal Workers Union, AFL-CIO,

498 U.S. 517, 523 n.3 (1991); accord Steel Co., 523 U.S.

at 92. Section 2000e-5(f)(1) answers the question whether

Congress “inten|ded] to create not just a private right

but also a private remedy,” Alexander v. Sandoval,

532 U.S. 275, 286 (2001)—not the distinct question

whether a court has the power to “proceed at all,” Steel

Co., 523 U.S. at 94 (citation omitted).

Title VII's text contrasts sharply with the text of

requirements that have satisfied the clear-statement

test. In Rockwell International Corp. v. United States,

549 U.S. 457 (2007), the Court addressed the provision

of the False Claims Act, 31 U.S.C. 3729 et seq., with-

drawing jurisdiction over claims based on public disclo-

sures. 549 U.S. at 467-470. The Act provided that “[nJo

court shall have jurisdiction over an action” by a private

plaintiff “based upon the public disclosure of allegations

or transactions” in certain contexts “unless” the plaintiff

“is an original source.” 31 U.S.C. 3730(e)(4)(A) (2006).

The Court held that “the jurisdictional nature of the

original-source requirement is clear ex visceribus ver-

borum.” Rockwell Int'l, 549 U.S. at 468. And in Patchak

v. Zinke, 138 S. Ct. 897 (2018), the plurality concluded

Congress had “use[d] jurisdictional language” by “stat-

[ing] that an ‘action’ relating to” certain property “‘shall

not be filed or maintained in a Federal court and shall

be promptly dismissed.’” Jd. at 904-905 (opinion of

Thomas, J.) (citation omitted). Title VII’s provisions at

issue here bear no resemblance to those statutes. They

neither refer to the authority of courts nor mandate dis-

missal of actions.

Moreover, the charge-filing requirement itself is a par-

adigmatic claim-processing rule. It requires individuals

alleging discrimination by a private, state-government, or

local-government employer to submit information to an

agency and then wait a specified period before bringing

suit unless the agency itself sues. That is a quintessential

requirement for the processing of claims. Cf. Patchak,

138 S. Ct. at 906 (plurality opinion) (listing “filing dead-

line[s]” and “exhaustion requirement{s]” compelling par-

ties to “‘take certain procedural steps at certain speci-

fied times’” as classic “‘claim-processing rule[s]’” (cita-

tion omitted)).

b. Statutory context confirms this conclusion. Con-

gress conferred federal-court jurisdiction over Title VII

suits in two other, separate provisions. First, 28 U.S.C.

1331 “gives federal courts subject-matter jurisdiction

over all civil actions ‘arising under’ the laws of the

United States,” and “Title VII actions fit that descrip-

tion.” Arbaugh, 546 U.S. at 503 (citation omitted). Sec-

ond, Congress included an additional grant of jurisdic-

tion when it enacted Title VII because, in 1964, “[Sec-

tion] 1331’s umbrella provision for federal-question

jurisdiction contained an amount-in-controversy limita-

tion” that might “impede an employment-discrimination

complainant’s access to a federal forum.” Jd. at 505.

That provision, codified at 42 U.S.C. 2000e-5(f)(3), pro-

vides: “Each United States district court and each

United States court of a place subject to the jurisdiction

of the United States shall have jurisdiction of actions

brought under this subchapter.” /bid. It then addresses

venue for such suits. /bid. Since the elimination of Sec-

tion 1331’s amount-in-controversy requirement, Section

2000e-5(f)(3) “has served simply to underscore Con-

gress’ intention to provide a federal forum for the adju-

dication of Title VII claims.” Arbaugh, 546 U.S. at 506.

Neither Section 1331 nor Section 2000e-5(f)(3) makes

jurisdiction turn on whether Title VII’s charge-filing

requirement has been satisfied. Neither “specifies any

threshold ingredient akin to 28 U.S.C. § 1332’s mone-

tary floor.” Arbaugh, 546 U.S. at 515. Although Section

2000e-5(f)(3) confers jurisdiction only over “actions

brought under [Title VII],” 42 U.S.C. 2000e-5(f)(3)

(emphasis added), that limitation is best understood—

like Section 1331’s “arising under” requirement—to

require that a complaint assert a “colorable” Title VII

claim that is not “‘wholly insubstantial and frivolous.’”

Arbaugh, 546 U.S. at 513 n.10 (quoting Bell v. Hood,

327 U.S. 678, 682-683 (1946)) (addressing Section 1331);

see Steel Co., 523 U.S. at 89. Moreover, as this Court

has repeatedly held in construing Title VII and other

statutes, the fact that Congress addressed jurisdiction

in “an entirely separate provision” confirms Section

2000e-5(e)(1) and (f)(1) are not jurisdictional. Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 394 (1982); see

Arbaugh, 546 U.S. at 515; Wong, 135 S. Ct. at 1633; Reed

Elsevier, 559 U.S. at 164-165.

ce. “(Cjontext” also “includ[{es] this Court’s interpre-

tations of similar provisions in many years past,” which

can be “probative of Congress’ intent.” Hamer, 138 S. Ct.

at 20 n.9 (brackets and citation omitted). This Court's

precedent powerfully reinforces the most natural read-

ing of the statute. Long before Arbaugh, this Court

held in Zipes that Title VII’s requirement to “filfe] a

timely charge of discrimination with the EEOC is not a

jurisdictional prerequisite to suit in federal court” for

reasons that apply equally to the charge-filing require-

ment itself. 455 U.S. at 393-394; see id. at 393-398.

In Zipes, the Court reasoned that “(t]he provision

specifying the time for filing charges with the EEOC,”

Section 2000e-5(e)(1), “does not speak in jurisdictional

terms or refer in any way to the jurisdiction of the dis-

trict courts.” 455 U.S. at 394; see id. at 394 n.10. The

Court also explained that the provision requiring a

timely charge is “entirely separate” from “[t|he provi-

sion granting district courts jurisdiction under Title

VII,” Section 2000e-5(f)(3), which “does not limit juris-

diction to those cases in which there has been a timely

filing with the EEOC.” Jd. at 393-394; see id. at 393 n.9.

The same is equally true of the requirement to file a

charge, which appears in the same provision.

Zipes further reasoned that Franks v. Bowman

Transportation Co., 424 U.S. 747 (1976), and Albemarle

Paper Co. v. Moody, 422 U.S. 405 (1975), foreclose

deeming the timely-charge requirement jurisdictional.

See Zipes, 455 U.S. at 396-397. In Albemarle Paper, the

Court “reject{ed] th{e] contention” that unnamed mem-

bers of a Title VII plaintiff class “who ha[d] not them-

selves filed charges with the EEOC” could not receive

backpay. 422 U.S. at 414 n.8. In Franks, it again

“reject{ed |” the argument that unnamed class members

who “had not filed administrative charges under the

provisions of Title VII with the [EEOC]” could not

obtain seniority relief. 424 U.S. at 771. “If the timely-

filing requirement were to limit the jurisdiction of the

District Court to those claimants who have filed timely

charges with the EEOC,” Zipes held, the courts “would

have been without jurisdiction to adjudicate the claims

of those who had not filed as well as without jurisdiction

to award them” relief. 455 U.S. at 397. So too here, the

necessary implication of Franks and Albemarle Paper

is that the failure to file a charge at all does not divest a

court of jurisdiction.

Moreover, as Zipes explained, in both Franks and

Albemarle Paper the Court recognized that “Congress

had approved the Court of Appeals cases that awarded

relief to class members who had not exhausted admin-

istrative remedies before the EEOC.” 455 U.S. at 397.

“{I}n doing so,” Zipes concluded, “Congress necessarily

adopted the view that the provision for filing charges with

the EEOC should not be construed to erect a jurisdic-

tional prerequisite to suit.” /bid.; see Franks, 424 US. at

771; Albemarle Paper, 422 U.S. at 414 n.8. Petitioner dis-

misses (Br. 48-49) Franks and Albemarle Paper as con-

fined to the class-action context. But this Court in Zipes

rejected that crabbed reading of those decisions by con-

cluding that their logic shows the timely-charge require-

ment itself is nonjurisdictional. See 455 U.S. at 397.

Petitioner cites two earlier cases that purportedly

“held that the filing of ‘charges of employment discrim-

ination with the Commission’ is one of ‘the jurisdictional

prerequisites to a federal action.’” Pet. Br. 48 (quoting

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798

(1973), and citing Alexander v. Gardner-Denver Co.,

415 U.S. 36, 47 (1974)). But Zipes dismissed those and

other “scattered references to the timely-filing require-

ment as jurisdictional” because “the legal character of

the requirement was not at issue in those cases,” and

later cases had not used the same label. 455 U.S. at 395;

see id. at 395 n.12. Those dicta are at most “‘drive-by

jurisdictional rulings’ that should be accorded ‘no prec-

edential effect’ on the question whether the federal court

had authority to adjudicate the claim in suit.” Arbaugh,

546 U.S. at 511 (quoting Steel Co., 523 U.S. at 91).

Beyond the Title VII context, the Court has held that

analogous requirements are not jurisdictional for rea-

sons similar to those applicable here. For example, in

Reed Elsevier, the Court held that the requirement that

a person must obtain (or seek and be refused) registra-

tion of a copyright from a federal agency before suing for

infringement is not jurisdictional. 559 U.S. at 160-169.

The Court noted that it had previously treated as nonju-

risdictional “other types of threshold requirements that

claimants must complete, or exhaust, before filing a law-

suit,” such as the administrative exhaustion requirement

of 42 U.S.C. 1997e(a) for certain suits by prisoners.

559 U.S. at 166; see id. at 166 n.6 (citing Jones v. Bock,

549 U.S. 199, 211 (2007), and Woodford v. Ngo, 548 U.S.

81, 93 (2006)); EME Homer City, 572 U.S. at 511-512

(applying Arbaugh to requirement to raise objection to

regulation with “reasonable specificity” during rulemak-

ing); Union Pacific, 558 U.S. at 80-85 (applying Arbaugh

to hold nonjurisdictional a statutory requirement that

parties to railway-labor disputes attempt to “confer-

encle}” certain disputes before arbitrating).

d. Petitioner and its amici suggest that Title VII's

charge-filing requirement is jurisdictional because it

conditions a waiver of state sovereign immunity. Pet.

Br. 46; NCSL Amicus Br. 22-29. That contention lacks

merit. To be sure, Congress’s decision to condition a

waiver of federal sovereign immunity on satisfying a

particular requirement may warrant deeming it juris-

dictional. Cf. United States v. Dalm, 494 U.S. 596,

608-610 (1990). But Section 2000e-5(e)(1) and (f)(1) do

not apply to suits against the federal government.

Although Section 2000e-5(e)(1) and (f)(1) apply ‘o suits

against States—as well as nonimmune private and

local-government defendants—the fact that a State

could face liability under those general provisions cannot

justify deeming the charge-filing requirement jurisdic-

tional. Otherwise, any prerequisite to a Title VII suit

applicable to actions against States and other defend-

ants alike—including the timely-charge and employee-

numerosity requirements—would presumably be juris-

dictional. That cannot be squared with this Court’s

decisions in Zipes and Arbaugh.

In contrast, sovereign-immunity considerations are

relevant to a separate provision of Title VII (not at issue

here) that addresses claims of employment discrimina-

tion by federal-government employers. See 42 U.S.C.

2000e-16. Section 2000e-16 establishes a distinct proce-

dure for the adjudication of such claims. “[C]Jomplaint(s]

of discrimination” are first presented to the employing

agency, and the agency’s action may then be appealed

to the EEOC; an employee or applicant who is “aggrieved

by the final disposition of his complaint, or by the failure

to take final action on his complaint, may file a civil action

as provided in section 2000e-5.” 42 U.S.C. 2000e-16(c).

As petitioner noted at the petition stage, although the

EEOC has long maintained that Section 2000e-5’s

charge-filing requirement is not jurisdictional in suits

against private or state or local government employers,

Pet. 19 & n.6, the government has argued that the fail-

ure of a person alleging employment discrimination by the

federal government to file a complaint in compliance with

Section 2000e-16 is a jurisdictional bar, Pet. 18 & n.5.

Sections 2000e-5 and 2000e-16 differ in significant

respects, including that Section 2000e-16 implicates fed-

eral sovereign immunity in every application, and that

it authorizes suits only by a person “aggrieved by the

final disposition of his complaint,” which presupposes

that a complaint was filed and “dispos{ed] of” by the

EEOC, 42 U.S.C. 2000e-16(c). In light of those differ-

ences, and because Section 2000e-16 does not apply

here, this case provides no occasion to address whether

Section 2000e-16(c)’s charge-filing requirement is juris-

dictional or otherwise nonwaivable. But if the Court

were to conclude in an appropriate case that the differ-

ences between Sections 2000e-5 and 2000e-16 are insuf-

ficient to warrant classifying them differently, it should

conclude that neither is jurisdictional.

B. Petitioner's Contention That Title VII's Charge-Filing

Requirement Is An “Exhaustion” Rule Exempt From

The Clear-Statement Rule Lacks Merit

Petitioner cannot show that Title VII contains the req-

uisite clear statement that the charge-filing requirement

is jurisdictional. Petitioner accordingly devotes most of

its argument to urging an exception to Arbaugh’s bright-

line rule for “exhaustion” requirements—ze., require-

ments to present claims to, or exhaust remedies before,

an agency. Pet. Br. 40. Petitioner attempts to ground

that exception in this Court’s cases addressing statu-

tory schemes that channel review of particular claims

through an exclusive process of administrative and judi-

cial review. In those regimes, petitioner argues, the

provisions precluding review by other means “|t]ypi-

cally” are jurisdictional. Pet. Br. 18 (emphasis omitted).

That contention lacks merit. There is no exception

to Arbaugh for exhaustion requirements. Congress of

course can make an exhaustion requirement jurisdic-

tional, and this Court has held that Congress has done

so in certain statutes. See, e.g., Mathews v. Eldridge,

424 U.S. 319, 328 (1976). But petitioner identifies no

basis for exempting such requirements from Arbaugh’s

rule. In any event, Title VII’s charge-filing require-

ment is not an exhaustion requirement, and the Court’s

cases addressing channeling review to an exclusive pro-

cess are inapposite.

1. In Arbaugh and later cases, the Court stated the

clear-statement rule in categorical terms, with no sug-

gestion that a broad subset of requirements is exempt.

See Arbaugh, 546 U.S. at 515-516; pp. 12-14, supra. The

Court has explained that Arbaugh’s “clear statement

rule” applies across the board—governing “time bars,”

Wong, 135 S. Ct. at 1632, and other requirements alike,

see Hamer, 138 S. Ct. at 20 n.9 (“clear-statement rule”

extends to “cases not involving the timebound transfer

of adjudicatory authority from one Article III court to

another”). The Court has in fact applied Arbaugh’s rule

to requirements to present matters to agencies prior to

litigating in a particular forum. See EME Homer City,

572 U.S. at 511-512; Reed Elsevier, 559 U.S. at 160-169;

ef. Union Pacific, 558 U.S. at 81-85. And it has held that

even an explicit statutory requirement to “‘exhaust| |’”

claims before administrative adjudicators is not “juris-

dictional,” Ngo, 548 U.S. at 88, 93 (quoting 42 U.S.C.

1997e(a)), and instead is an affirmative defense, Jones,

549 U.S. at 211-217; see Patchak, 138 S. Ct. at 906 (plu-

rality opinion).

Adopting an exception to Arbaugh’s rule for exhaus-

tion requirements also would undermine the rule’s cen-

tral purpose. Injecting a threshold, ‘Arbaugh Step Zero’

inquiry would blur the “readily administrable bright line”

Arbaugh drew and reintroduce some of the uncertainty

and confusion that the clear-statement rule eliminates.

546 U.S. at 516. And it would defeat the Court’s goal of

“leaviing] the ball in Congress’ court,” which requires

providing clear background rules against which Con-

gress can legislate. /d. at 515.

To be sure, “Congress could make” exhaustion

requirements jurisdictional, “just as it has made an

amount-in-controversy threshold an ingredient of

subject-matter jurisdiction” in 28 U.S.C. 1332. Arbaugh,

546 U.S. at 514-515; see id. at 515 n.11 (listing examples

of statutes that make particular requirements jurisdic-

tional). And this Court has held that some require-

ments to present claims to agencies are jurisdictional in

character. In Eldridge, it concluded that the statutory

requirement to present a Social Security claim first tc

the agency is a “‘jurisdictional’” and “nonwaivable” pre-

requisite to judicial review under 42 U.S.C. 405(g), rea-

soning that “|a]bsent such a claim there can be no ‘deci-

sion’” that a court can review. 424 U.S. at 328; ef.

42 U.S.C. 2000e-16(c) (permitting Title VII suit by fed-

eral employee “aggrieved by the final disposition of his

complaint, or by the failure to take final action on his

complaint,” which presupposes that complaint was filed

and disposed of). That conclusion is reinforced in the

Social Security context by the fact that 42 U.S.C. 405(h)

expressly bars jurisdiction under any other statute,

including 28 U.S.C. 1331, to review Social Security

determinations, which necessarily means 42 U.S.C.

405(g) provides the only avenue to court. But precisely

because Congress can make an exhaustion requirement

jurisdictional if it wishes, there is no sound basis for

exempting such requirements from the ordinary rule.

2. In any event, petitioner’s argument fails on its

own terms because Title VII’s charge-filing require-

ment is not “in any sense an exhaustion provision.”

Ngo, 548 U.S. at 98 (rejecting analogy between exhaus-

tion requirement of 42 U.S.C. 1997e(a) for certain suits

by prisoners and Title VII’s charge-filing requirement).

Unlike the statutory schemes in the cases petitioner

cites (Br. 18-23)—in which a claimant must submit a

claim to an agency, which then renders a decision that

is subject to judicial review—Title VII does not empower

the EEOC to issue decisions adjudicating claims and

awarding relief that courts then review. The statute

directs the EEOC to investigate allegations of discrimina-

tion, to determine whether reasonable cause exists to

believe that the allegations are true, and to attempt to

conciliate disputes. 42 U.S.C. 2000e-5(b) and (f)(1). If

those efforts fail, the EEOC cannot issue a self-executing

ruling that parties must obey unless it is overturned by

a court.

Instead, if the EEOC believes a claim is meritorious,

it must seek judicial relief. And if a suit is brought—

whether by the EEOC, the Attorney General, or a pri-

vate party—the court does not review the EEOC’s

action; it considers the claim of employment discrimina-

tion de novo. See Chandler v. Roudebush, 425 U.S. 840,

844-845 (1976). Moreover, a private suit can proceed

even if the EEOC does not act at all. An individual

alleging discrimination is entitled to sue 180 days after

filing a charge even if the EEOC’s investigation is

ongoing. 42 U.S.C. 2000e-5(f)(1).

The Title VII regime thus does not resemble the

“statutory scheme[s] of administrative and judicial

review” petitioner surveys (Br. 20), in which Congress

has channeled review of certain claims to agencies and

restricted judicial review accordingly. See Pet. Br.

18-23. Instead, individuals alleging discrimination

merely must give the EEOC a right of first refusal

before bringing their own suits. This Court’s cases

addressing whether it is “‘fairly discernible’” that Con-

gress intended a particular avenue of administrative

adjudication and judicial review to be “exclusive| |” are

therefore inapposite. Elgin v. Department of the Treas-

ury, 567 U.S. 1, 10 (2012); see id. at 8-15; Thunder

Basin Coal Co. v. Reich, 510 U.S. 200, 207-216 (1994).

Congress did not channel Title VII claims to the EEOC

for adjudication; it left the adjudication of such claims

to federal courts. Respondent is not seeking to bypass

an exclusive avenue for adjudicating claims by litigating

in a forum different than the one Congress specified.

She brought suit in district court, as Title VII directs.

The question is whether a failure to comply with a par-

ticular prerequisite to seeking review in that forum has

jurisdictional consequences.

The charge-filing requirement also does not impli-

cate many of the same concerns that underlie typical

exhaustion requirements. It does not guard against

usurpation of “administrative agency authority” to decide

disputes or to “correct [an agency’s}] own mistakes.”

Ngo, 548 U.S. at 89 (citation omitted). Nor does it “pro-

duce a useful record for subsequent judicial considera-

tion.” /bid. (citation omitted). Courts in Title VII suits

do not sit in review of the EEOC’s reasonable-cause

determinations. They simply decide the plaintiff’s claims.

3. Even if petitioner could establish that exhaustion

requirements are exempt from Arbaugh and that the

requirement to file a charge is an exhaustion require-

ment, that still would not support petitioner’s position

here. Respondent undisputedly filed a charge with the

EEOC. Petitioner’s contention (Br. 54-56) is that

respondent’s charge was inadequate because it omitted

the specific allegation (of religious discrimination) on

which respondent is now pursuing relief in court.

Because petitioner “forfeited” any defense that respond-

ent failed to satisfy the charge-filing requirement, Pet.

App. 15a, petitioner must show that Congress stripped

federal-court jurisdiction over any particular ailegation

not included in an otherwise-proper charge.

Petitioner has not made that showing. Indeed, where

a statute does not expressly preclude consideration by

a court of matters not presented in a parvicular way to

an agency, courts are reluctant to read in an “issue

exhaustion” requirement unless the agency proceed-

ings are “adversarial” in nature. Sims v. Apfel, 530 U.S.

103, 110 (2000); see id. at 107-110. Courts should be

all the more reluctant to read in a jurisdictional issue-

exhaustion rule where Congress has not imposed one.

It is thus very unlikely that Congress intended the

omission of particular allegations in an EEOC charge to

have jurisdictional consequences. Proceedings before

the EEOC are not adversarial. Moreover, whatever

specific allegations a charge inakes, the EEOC conducts

its own investigation and may bring suit challenging any

violations it discovers in the course of a reasonable

investigation. See General Tel. Co. of the Nw., Inc.

v. EEOC, 446 U.S. 318, 331 (1980); see also p. 31,

infra. Title VII therefore cannot fairly be construed as

imposing a jurisdictional bar to courts’ considering par-

ticular allegations not sufficiently articulated in a charge.

C. The Statutory Purposes Do Not Require Treating Title

VII's Charge-Filing Requirement As Jurisdictional

Petitioner also argues (Br. 27-382, 45-47) that the

charge-filing requirement should not be deemed juris-

dictional because it serves important statutory purposes.

But a requirement should not “be ranked as jurisdic-

tional merely because it promotes important congres-

sional objectives.” Reed Elsevier, 559 U.S. at 169 n.9. In

any event, Congress’s purposes do not require deeming

the charge-filing requirement jurisdictional.

1. The EEOC’s role in investigating and conciliating

discrimination claims is a “key component of the statu-

tory scheme.” Mach Mining, LLC v. EEOC, 135 8. Ct.

1645, 1651 (2015). And the charge-filing requirement

serves important goals. A charge enables the EEOC to

investigate and attempt to resolve claims or, failing

that, to sue. The charge-filing requirement also was

designed—as part of a legislative compromise—to limit

the EEOC’s authority by confining its investigations

primarily to matters “relevant” to charges it receives,

42 U.S.C. 2000e-8(a), nearly all of which are filed by pri-

vate parties. See EEOC v. Shell Oil Co., 466 U.S. 54, 64

(1984).

Petitioner is mistaken, however, in assuming (Br.

27-32, 45-47) that, if the charge-filing requirement is

nonjurisdictional, individuals alleging discrimination

will cease filing charges and will instead proceed imme-

diately to court, circumventing the EEOC. Deeming

the charge-filing requirement nonjurisdictional does

not excuse individuals from filing charges. It means the

defense of failure to file a proper charge can be forfeited

or waived, and courts need not raise it swa sponte. See

pp. 14-15, supra. But if a defendant timely raises a valid

defense that the plaintiff failed to file a proper charge,

“a court will usually dismiss a complaint for failure to

do so.” Mach Mining, 135 S. Ct. at 1651.

Nor is there any reason to suppose that defendants

will ordinarily be unable to raise that defense. An

employer sued under Title VII will know whether a

charge was previously filed because the EEOC must

“serve a notice of the charge” on the employer “within

ten days” after it is filed, 42 U.S.C. 2000e-5(b), and the

EEOC ordinarily serves a copy of the actual charge,

29 C.F.R. 1601.14(a). If no charge was filed, the employer

has every reason to raise that failure as a defense, at

least where (as is often true) the time for filing (or

amending) a charge has expired.

Individuals alleging discrimination, in turn, have a

powerful incentive to file charges in the first instance to

avoid having their suits dismissed, in addition to hoping

that the EEOC might help mediate a resolution or bring

its own suit. Petitioner points to no evidence that indi-

viduals have bypassed the EEOC process entirely in the

eight circuits that have held the charge-filing require-

ment nonjurisdictional. And although the EEOC does

not publish circuit-specifie statistics, the number of

Title VII charges received nationwide has remained rel-

atively consistent for decades.°

* The EEOC received slightly more charges in FY2017 (59,466)

than in FY1997 (58,615). EEOC, Title VII of the Civil Rights Act

of 1964 Charges, FY 1997-FY 2017, https://www.eeoc.gov/eeoc/

statistics/enforcement/titlevii.cfm. The number has fluctuated but

has ranged between approximately 56,000 and 73,000 throughout

(not counting charges filed with state or local agencies). /bid.

To the extent petitioner fears that deeming the

charge-filing rule nonjurisdictional will induce individu-

als alleging discrimination to file charges omitting spe-

cific allegations that they later attempt to raise in court,

that fear is unfounded. An individual who enlists the

EEOC’s assistance (and hopes it will bring its own suit)

has little incentive to leave potentially viable claims

behind. And if the EEOC brings suit, it is not confined

to the allegations of discrimination identified in the orig-

inal charge. See General Telephone, 446 U.S. at 331.

If an individual nevertheless files a charge and then

brings suit alleging different or additional claims, a defend-

ant may seek dismissal of those claims. An employer ordi-

narily will be well positioned to do so; it will be aware of the

nature of the allegations asserted in the charge. To be

sure, lower courts have concluded that a private plaintiff

may assert in litigation any allegation that is “like or rea-

sonably related” to those in the initial charge. F.g.,

Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189,

1204-1205 (9th Cir. 2016), cert. denied, 137 S. Ct.

(2017). That reflects the fundamental nature of a charge,

which marks the beginning of the process of investigating

allegations, not the end. But if a plaintiff asserts a claim

that is not reasonably related to the charge, the employer

ean seek dismissal. Plaintiffs have little reason to risk

having their claims rejected in court by holding them back

from the EEOC.

Petitioner’s position thus principally matters only

where either (A) the employer itself did not notice the

difference between the charge and the complaint, or

(B) the employer knew of the difference but decided not

to raise it promptly as a defense. It is highly unlikely

that Congress intended to strip jurisdiction over a claim

in either circumstance. If even the employer does not

detect a deficiency in the allegations of a charge, it is

unlikely the individual (often a layperson) recognized it

either. And if a defendant deliberately chooses to

bypass an available defense that the charge omitted a

particular allegation, it is unrealistic to suppose that

Congress intended to bar federal courts from entertain-

ing the claim. That outcome would do little to advance

the charge-filing requirement’s purposes. Although the

EEOC would have been unable to attempt conciliation

of the claim, the likelihood of voluntary resolution in

that scenario is presumably low. And although the

EEOC would have missed the chance to bring its own

suit, a private suit already has been brought, and the

EEOC ean seek leave to intervene if it deems the suit

“of general public importance.” 42 U.S.C. 2000e-5(f)(1).

2. Any marginal benefit that deeming the charge-

filing requirement jurisdictional would generate is out-

weighed by the costs for courts and litigants. Labeling

the charge-filing requirement jurisdictional matters

most in cases where a defendant does not raise as a

defense the plaintiff’s failure to include a particular

allegation in her EEOC charge; the plaintiff prevails on

the merits to some extent, either by proving her claim

or overcoming an interlocutory hurdle; and then the

defendant seeks to undo that result by belatedly con-

testing jurisdiction (or a court is compelled to do so sua

sponte). That outcome is unfair to a plaintiff who has

achieved full or partial success litigating the merits, and

it dimi»*shes defendants’ incentive to review a plain-

tiff’s complaint carefully and raise any issues regarding

the charge promptly. In this case, petitioner failed to

raise its objection to respondent’s charge until years

into the litigation, after this Court denied certiorari in a

prior appeal. Pet. App. 14a-15a.

Deeming the charge-filing requirement jurisdictional

also would be “waste[ful] of adjudicatory resources” of

courts. Auburn, 568 U.S. at 153. It would force trial

and appellate courts to address the adequacy of the

charge’s allegations at the threshold, even when the

parties do not raise the issue, and even where a claim

clearly fails on the merits. See Steel Co., 523 U.S. at 94.

And if a defect in the charge surfaces late in the litiga-

tion or on appeal, it renders nugatory the time and

effort spent by courts until that point.

Finally, although Title VII uses mandatory language

in requiring a charge before suit is brought, 42 U.S.C.

2000e-5(e)(1) and (f)(1) (charge “shall be filed” before

bringing suit), this case does not present the separate

question whether any exceptions exist. Exceptions (if

any) to procedural requirements should be applied

“sparingly,” National R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 113 (2002), and excusing a failure to com-

ply with the charge-filing requirement might be appro-

priate at most only in limited circumstances. For exam-

ple, courts have recognized exceptions where an agency

official erroneously refused to accept a charge or

amendment or misled the individual alleging discrimi-

nation. See, e.g., McKee v. McDonnell Douglas Tech.

Servs. Co., 700 F.2d 260, 263-264 (5th Cir. 1983); Josephs

v. Pacific Bell, 443 F.3d 1050, 1054 (9th Cir. 2006).

“| A}ffirmative misconduct on the part of a defendant”

that “lulled the plaintiff into inaction” might also warrant

an exception. Baldwin Cnty. Welcome Ctr. v. Brown,

466 U.S. 147, 151 (1984) (per curiam). The existence of

any such exceptions is not presented here because peti-

tioner “forfeited” the defense that respondent failed to

comply with the charge-filing requirement. Pet. App.

15a. But the relevant point is that petitioner’s position

would take off the table entirely any possibility of

exceptions tailored to address such rare circumstances.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JAMES L. LEE Eric 8. DREIBAND

General Counsel Assistant Attorney General

JENNIFER S. GOLDSTEIN JEFFREY B. WALL

Associate Counsel Deputy Solicitor General

ELIZABETH E. THERAN JONATHAN C. BOND

Assistant General Counsel Assistant to the Solicitor

GAIL S. COLEMAN General

Attorney BONNIE IL. ROBIN-VERGEER

U.S. Equal Employment DAYNA J. ZOLLE

Opportunity Commission Attorneys

APRIL 2019

APPENDIX

1. 28 U.S.C. 1331 provides:

Federal question

The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws, or

treaties of the United States.

2. 42 U.S.C. 2000e-5 provides:

Enforcement provisions

(a) Power of Commission to prevent unlawful employ-

ment practices

The Commission is empowered, as hereinafter pro-

vided, to prevent any person from engaging in any

unlawful employment practice as set forth in section

2000e-2 or 2000e-3 of this title.

(b) Charges by persons aggrieved or member of

Commission of unlawful employment practices by

employers, etc.; filing; allegations; notice to respon-

dent; contents of notice; investigation by Commis-

sion; contents of charges; prohibition on disclosure

of charges; determination of reasonable cause; con-

ference, conciliation, and persuasion for elimination

of unlawful practices; prohibition on disclosure of

informal endeavors to end unlawful practices; use of

evidence in subsequent proceedings; penalties for

disclosure of information; time for determination of

reasonable cause

Whenever a charge is filed by or on behalf of a per-

son claiming to be aggrieved, or by a member of the

(la)

Commission, alleging that an employer, employment

agency, labor organization, or joint labor-management

committee controlling apprenticeship or other training

or retraining, including on-the-job training programs,

has engaged in an unlawful employment practice, the

Commission shall serve a notice of the charge (includ-

ing the date, place and circumstances of the alleged

unlawful employment practice) on such employer,

employment agency, labor organization, or joint labor-

management committee (hereinafter referred to as the

“respondent”) within ten days, and shall make an inves-

tigation thereof. Charges shall be in writing under

oath or affirmation and shall contain such information

and be in such form as the Commission requires.

Charges shall not be made public by the Commission.

If the Commission determines after such investigation

that there is not reasonable cause to believe that the

charge is true, it shall dismiss the charge and promptly

notify the person claiming to be aggrieved and the

respondent of its action. In determining whether

reasonable cause exists, the Commission shall accord

substantial weight to final findings and orders made by

State or local authorities in proceedings commenced

under State or local law pursuant to the requirements

of subsections (c) and (d) of this section. If the Com-

mission determines after such investigation that there

is reasonable cause to believe that the charge is true,

the Commission shall endeavor to eliminate any such

alleged unlawful employment practice by informal meth-

ods of conference, conciliation, and persuasion. Nothing

said or done during and as a part of such informal

endeavors may be made public by the Commission, its

officers or employees, or used as evidence in a subse-

quent proceeding without the written consent of the

persons concerned. Any person who makes public

information in violation of this subsection shall be fined

not more than $1,000 or imprisoned for not more than

one year, er both. The Commission shall make its

determination on reasonable cause as promptly as

possible and, so far as practicable, not later than one

hundred and twenty days from the filing of the charge

or, where applicable under subsection (c) or (d) of this

section, from the date upon which the Commission is

authorized to take action with respect to the charge.

of State or local authority; time for filing charges

with Commission; commencement of proceedings

In the case of an alleged unlawful employment prac-

tice occurring in a State, or political subdivision of a

State, which has a State or local law prohibiting the

unlawful employment practice alleged and establishing

or authorizing a State or local authority to grant or

seek relief from such practice or to institute criminal

proceedings with respect thereto upon receiving notice

thereof, no charge may be filed under subsection (a)’

of this section by the person aggrieved before the

expiration of sixty days after proceedings have been

commenced under the State or local law, unless such

proceedings have been earlier terminated, provided

that such sixty-day period shall be extended to one

hundred and twenty days during the first year after

the effective date of such State or local law. If any

requirement for the commencement of such proceed-

ings is imposed by a State or local authority other than

a requirement of the filing of a written and signed

' So in original. Probably should be subsection “(b)”.

statement of the facts upon which the proceeding is

based, the proceeding shall be deemed to have been

commenced for the purposes of this subsection at the

time such statement is sent by registered mail to the

appropriate State or local authority.

(d) State or local enforcement proceedings; notification

of State or local authority; time for action on

charges by Commission

In the case of any charge filed by a member of the

Commission alleging an unlawful employment practice

occurring in a State or political subdivision of a State

which has a State or local law prohibiting the practice

alleged and establishing or authorizing a State or local

authority to grant or seek relief from such practice or

to institute criminal proceedings with respect thereto

upon receiving notice thereof, the Commission shall,

before taking any action with respect to such charge,

notify the appropriate State or local officials and, upon

request, afford them a reasonable time, but not less

than sixty days (provided that such sixty-day period

shall be extended to one hundred and twenty days

during the first year after the effective day of such

State or local law), unless a shorter period is requested,

to act under such State or local law to remedy the prac-

tice alleged.

(e) Time for filing charges; time for service of notice of

charge on respondent; filing of charge by Commis-

sion with State or local agency; seniority system

(1) Acharge under this section shall be filed within

one hundred and eighty days after the alleged unlawful

employment practice occurred and notice of the charge

(including the date, place and circumstances of the

alleged unlawful employment practice) shall be served

upon the person against whom such charge is made

within ten days thereafter, except that in a case of an

unlawful employment practice with respect to which

the person aggrieved has initially instituted proceed-

ings with a State or local agency with authority to

grant or seek relief from such practice or to institute

criminal proceedings with respect thereto upon receiv-

ing notice thereof, such charge shall be filed by or on

behalf of the person aggrieved within three hundred

days after the alleged unlawful employment practice

occurred, or within thirty days after receiving notice

that the State or local agency has terminated the pro-

ceedings under the State or local law, whichever is ear-

lier, and a copy of such charge shall be filed by the

Commission with the State or local agency.

(2) For purposes of this section, an unlawful employ-

ment practice occurs, with respect to a seniority system

that has been adopted for an intentionally discrim-

inatory purpose in violation of this subchapter (whether

or not that discriminatory purpose is apparent on the

face of the seniority provision), when the seniority

system is adopted, when an individual becomes subject

to the seniority system, or when a person aggrieved is

injured by the application of the seniority system or

provision of the system.

(3A) For purposes of this section, an unlawful

employment practice occurs, with respect to discrimi-

nation in compensation in violation of this subchapter,

when a discriminatory compensation decision or other

practice is adopted, when an individual becomes sub-

ject to a discriminatory compensation decision or other

practice, or when an individual is affected by applica-

tion of a discriminatory compensation decision or other

practice, including each time wages, benefits, or other

compensation is paid, resulting in whole or in part from

such a decision or other practice.

(B) In addition to any relief authorized by section

1981a of this title, liability may accrue and an aggrieved

person may obtain relief as provided in subsection

(g)(1), ineluding recovery of back pay for up to two years

preceding the filing of the charge, where the unlawful

employment practices that have occurred during the

charge filing period are similar or related to unlawful

employment practices with regard to discrimination in

compensation that occurred outside the time for filing a

charge.

(f) Civil action by Commission, Attorney General, or

person aggrieved; preconditions; procedure; appoint-

ment of attorney; payment of fees, costs, or security;

intervention; stay of Federal proceedings; action for

appropriate temporary or preliminary relief pending

final disposition of charge; jurisdiction and venue of

United States courts; designation of judge to hear

and determine case; assignment of case for hearing;

expedition of case; appointment of master

(1) If within thirty days after a charge is filed with

the Commission or within thirty days after expiration

of any period of reference under subsection (c) or (d),

of this section the Commission has been unable to

secure from the respondent a conciliation agreement

acceptable to the Commission, the Commission may

bring a civil action against any respondent not a gov-

ernment, governmental agency, or political subdivision

named in the charge. In the case of a respondent

which is a government, governmental agency, or polit-

ical subdivision, if the Commission has been unable to

secure from the respondent a conciliation agreement

acceptable to the Commission, the Commission shall

take no further action and shall refer the case to the

Attorney General who may bring a civil action against

such respondent in the appropriate United States dis-

trict court. The person or persons aggrieved shall

have the right to intervene in a civil action brought by

the Commission or the Attorney General in a case

involving a government, governmental agency, or po-

litical subdivision. If a charge filed with the Commis-

sion pursuant to subsection (b) of this section, is dis-

missed by the Commission, or if within one hundred

and eighty days from the filing of such charge or the

expiration of any period of reference under subsection

(ec) or (d) of this section, whichever is later, the Com-

mission has not filed a civil action under this section or

the Attorney General has not filed a civil action in a

case involving a government, governmental agency, or

political subdivision, or the Commission has not entered

into a conciliation agreement to which the person

aggrieved is a party, the Commission, or the Attorney

General in a case involving a government, governmen-

tal agency, or political subdivision, shall so notify the

person aggrieved and within ninety days after the

giving of such notice a civil action may be brought

against the respondent named in the charge (A) by the

person claiming to be aggrieved or (B) if such charge

was filed by a member of the Commission, by any per-

son whom the charge alleges was aggrieved by the

alleged unlawful employment practice. Upon applica-

tion by the complainant and in such circumstances as

the court may deem just, the court may appoint an

attorney for such complainant and may authorize the

commencement of the action withovt the payment of

fees, costs, or security. Upon timely application, the

court may, in its discretion, permit the Commission, or

the Attorney General in a case involving a government,

governmental agency, or political subdivision, to inter-

vene in such civil action upon certification that the case

is of general public importance. Upon request, the

court may, in its discretion, stay further proceedings

for not more than sixty days pending the termination of

State or local proceedings described in subsection (c)

or (d) of this section or further efforts of the Commis-

sion to obtain voluntary compliance.

(2) Whenever a charge is filed with the Commis-

sion and the Commission concludes on the basis of a

preliminary investigation that prompt judicial action is

necessary to carry out the purposes of this Act, the

Commission, or the Attorney General in a case involv-

ing a government, governmental agency, or political

subdivision, may bring an action for appropriate tem-

porary or preliminary relief pending final disposition of

such charge. Any temporary restraining order or

other order granting preliminary or temporary relief

shall be issued in accordance with rule 65 of the Feder-

al Rules of Civil Procedure. It shall be the duty of a

court having jurisdiction over proceedings under this

section to assign cases for hearing at the earliest prac-

ticable date and to cause such cases to be in every way

expedited.

(3) Each United States district court and each

United States court of a place subject to the jurisdiction

of the United States shall have jurisdiction of actions

brought under this subchapter. Such an action may

be brought in any judicial district in the State in which

the unlawful employment practice is alleged to have

been committed, in the judicial district in which the

employment records relevant to such practice are

maintained and administered, or in the judicial district

in which the aggrieved person would have worked but

for the alleged unlawful employment practice, but if the

respondent is not found within any such district, such

an action may be brought within the judicial district in

which the respondent has his principal office. For pur-

poses of sections 1404 and 1406 of title 28, the judicial

district in which the respondent has his principal office

shall in all cases be considered a district in which the

action might have been brought.

(4) It shall be the duty of the chief judge of the

district (or in his absence, the acting chief judge) in

which the case is pending immediately to designate a

judge in such district to hear and determine the case.

In the event that no judge in the district is available to

hear and determine the case, the chief judge of the

district, or the acting chief judge, as the case may be,

shall certify this fact to the chief judge of the circuit (or

in his absence, the acting chief judge) who shall then

designate a district or circuit judge of the circuit to

hear and determine the case.

(5) It shall be the duty of the judge designated

pursuant to this subsection to assign the case for hear-

ing at the earliest practicable date and to cause the

case to be in every way expedited. If such judge has

not scheduled the case for trial within one hundred and

twenty days after issue has been joined, that judge may

appoint a master pursuant to rule 53 of the Federal

Rules of Civil Procedure.

10a

(g) Injunctions; appropriate affirmative action; equi-

table relief; accrual of back pay; reduction of back

pay; limitations on judicial orders

(1) If the court finds that the respondent has inten-

tionally engaged in or is intentionally engaging in an

unlawful employment practice charged in the complaint,

the court may enjoin the respondent from engaging in

such unlawful employment practice, and order such

affirmative action as may be appropriate, which may

include, but is not limited to, reinstatement or hiring of

employees, with or without back pay (payable by the

employer, employment agency, or labor organization,

as the case may be, responsible for the unlawful employ-

ment practice), or any other equitable relief as the

court deems appropriate. Back pay liability shall not

accrue from a date more than two years prior to the

filing of a charge with the Commission. Interim earn-

ings or amounts earnable with reasonable diligence by

the person or persons discriminated against shall operate

to reduce the back pay otherwise allowable.

(2A) No order of the court shall require the admis-

sion or reinstatement of an individual as a member of a

union, or the hiring, reinstatement, or promotion of an

individual as an employee, or the payment to him of

any back pay, if such individual was refused admission,

suspended, or expelled, or was refused employment or

advancement or was suspended or discharged for any

reason other than discrimination on account of race,

color, religion, sex, or national origin or in violation of

section 2000e-3(a) of this title.

(B) On a claim in which an individual proves a viola-

tion under section 2000e-2(m) of this title and a respond-

ent demonstrates that the respondent would have tak-

lla

en the same action in the absence of the impermissible

motivating factor, the court—

(i) may grant declaratory relief, injunctive relief

(except as provided in clause (ii)), and attorney’s

fees and costs demonstrated to be directly attribut-

able only to the pursuit of a claim under section

2000e-2(m) of this title; and

(ii) shall not award damages or issue an order

requiring any admission, reinstatement, hiring, pro-

motion, or payment, described in subparagraph (A).

(h) Provisions of chapter 6 of title 29 not applicable to

civil actions for prevention of unlawful practices

The provisions of chapter 6 of title 29 shall not apply

with respect to civil actions brought under this section.

(i) Proceedings by Commission to compel compliance

with judicial orders

In any case in which an employer, employment

agency, or labor organization fails to comply with an

order of a court issued in a civil action brought under

this section, the Commission may commence proceed-

ings to compel compliance with such order.

(j) Appeals

Any civil action brought under this section and any

proceedings brought under subsection (i) of this section

shall be subject to appeal as provided in sections 1291

and 1292, title 28.

(k) Attorney’s fee; liability of Commission and United

States for costs

In any action or proceeding under this subchapter

the court, in its discretion, may allow the prevailing

12a

party, other than the Commission or the United States,

a reasonable attorney’s fee (including expert fees) as

part of the costs, and the Commission and the United

States shall be liable for costs the same as a private

person.

3. 42 U.S.C. 2000e-6 provides:

Civil actions by the Attorney General

(a) Complaint

Whenever the Attorney General has reasonable cause

to believe that any person or group of persons is

engaged in a pattern or practice of resistance to the full

enjoyment of any of the rights secured by this subchap-

ter, and that the pattern or practice is of such a nature

and is intended to deny the full exercise of the rights

herein described, the Attorney General may bring a

civil action in the appropriate district court of the

United States by filing with it a complaint (1) signed by

him (or in his absence the Acting Attorney General),

(2) setting forth facts pertaining to such pattern or

practice, and (3) requesting such relief, including an

application for a permanent or temporary injunction,

restraining order or other order against the person or

persons responsible for such pattern or practice, as he

deems necessary to insure the full enjoyment of the

rights herein described.

13a

(b) Jurisdiction; three-judge district court for cases of

general public importance: hearing, determination,

expedition of action, review by Supreme Court;

single judge district court: hearing, determination,

expedition of action

The district courts of the United States shall have

and shall exercise jurisdiction of proceedings instituted

pursuant to this section, and in any such proceeding the

Attorney General may file with the clerk of such court

a request that a court of three judges be convened

to hear and determine the case. Such request by the

Attorney General shall be accompanied by a certificate

that, in his opinion, the case is of general public impor-

tance. A copy of the certificate and request for a three-

judge court shall be immediately furnished by such

clerk to the chief judge of the circuit (or in his absence,

the presiding circuit judge of the circuit) in which the

case is pending. Upon receipt of such request it shall

be the duty of the chief judge of the circuit or the pre-

siding circuit judge, as the case may be, to designate

immediately three judges in such circuit, of whom at

least one shall be a circuit judge and another of whom

shall be a district judge of the court in which the pro-

ceeding was instituted, to hear and determine such

case, and it shall be the duty of the judges so desig-

nated to assign the case for hearing at the earliest

practicable date, to participate in the hearing and deter-

mination thereof, and to cause the case to be in every

way expedited. An appeal from the final judgment of

such court will lie to the Supreme Court.

In the event the Attorney General fails to file such a

request in any such proceeding, it shall be the duty of

the chief judge of the district (or in his absence, the

l4a

acting chief judge) in which the case is pending imme-

diately to designate a judge in such district to hear and

determine the case. In the event that no judge in the

district is available to hear and determine the case, the

chief judge of the district, or the acting chief judge, as

the case may be, shall certify this fact to the chief judge

of the circuit (or in his absence, the acting chief judge)

who shall then designate a district or circuit judge of

the circuit to hear and determine the case.

It shall be the duty of the judge designated pursu-

ant to this section to assign the case for hearing at the

earliest practicable date and to cause the case to be in

every way expedited.

date; prerequisite to transfer; execution of functions

by Commission

Effective two years after March 24, 1972, the func-

tions of the Attorney General under this section shall

be transferred to the Commission, together with such

personnel, property, records, and unexpended balances

of appropriations, allocations, and other funds employed,

used, held, available, or to be made available in connec-

tion with such functions unless the President submits,

and neither House of Congress vetoes, a reorganization

plan pursuant to chapter 9 of title 5, inconsistent with

the provisions of this subsection. The Commission shall

carry out such functions in accordance with subsections

(d) and (e) of this section.

l5a

(d) Transfer of functions, etc., not to affect suits

commenced pursuant to this section prior to date

of transfer

Upon the transfer of functions provided for in sub-

section (c) of this section, in all suits commenced pur-

suant to this section prior to the date of such transfer,

proceedings shall continue without abatement, all court

orders and decrees shall remain in effect, and the Com-

mission shall be substituted as a party for the United

States of America, the Attorney General, or the Acting

Attorney General, as appropriate.

(e) Investigation and action by Commission pursuant

to filing of charge of discrimination; procedure

Subsequent to March 24, 1972, the Commission shall

have authority to investigate and act on a charge of a

pattern or practice of discrimination, whether filed by

or on behalf of a person claiming to be aggrieved or by

a member of the Commission. All such actions shall

be conducted in accordance with the procedures set

forth in section 2000e-5 of this title.

4. 42 U.S.C. 2000e-16 provides:

Employment by Federal Government

(a) Discriminatory practices prohibited; employees or

applicants for employment subject to coverage

All personnel actions affecting employees or appli-

cants for employment (except with regard to aliens

employed outside the limits of the United States) in

military departments as defined in section 102 of title 5,

in executive agencies as defined in section 105 of title 5

(including employees and applicants for employment

l6a

who are paid from nonappropriated funds), in the United

States Postal Service and the Postal Regulatory Com-

mission, in those units of the Government of the Dis-

trict of Columbia having positions in the competitive

service, and in those units of the judicial branch of

the Federal Government having positions in the com-

petitive service, in the Smithsonian Institution, and in

the Government Publishing Office, the Government

Accountability Office, and the Library of Congress

shall be made free from any discrimination based on

race, color, religion, sex, or national origin.

(b) Equal Employment Opportunity Commission;

enforcement powers; issuance of rules, regula-

tions, etc.; annual review and approval of national

and regional equal employment opportunity plans;

review and evaluation of equal employment oppor-

tunity programe and publication of progress reports;

consultations with interested parties; compliance

with rules, regulations, etc.; contents of national

and regional equal employment opportunity plans;

authority of Librarian of Congress

Except as otherwise provided in this subsection, the

Equal Employment Opportunity Commission shall have

authority to enforce the provisions of subsection (a) of

this section through appropriate remedies, including

reinstatement or hiring of employees with or without

back pay, as will effectuate the policies of this section,

and shall issue such rules, regulations, orders and

instructions as it deems necessary and appropriate to

carry out its responsibilities under this section. The

Equal Employment Opportunity Commission shall—

17a

(1) be responsible for the annual review and

approval of a national and regional equal employ-

ment opportunity plan which each department and

agency and each appropriate unit referred to in

subsection (a) of this section shall submit in order to

maintain an affirmative program of equal employ-

ment opportunity for all such employees and appli-

cants for employment;

(2) be responsible for the review and evaluation

of the operation of all agency equal employment

opportunity programs, periodically obtaining and

publishing (on at least a semiannual basis) progress

reports from each such department, agency, or unit;

and

(3) consult with and solicit the recommendations

of interested individuals, groups, and organizations

relating to equal employment opportunity.

The head of each such department, agency, or unit

shall comply with such rules, regulations, orders, and

instructions which shall include a provision that an

employee or applicant for employment shall be notified

of any final action taken on any complaint of discrimi-

nation filed by him thereunder. The plan submitted

by each department, agency, and unit shall include, but

not be limited to—

(1) provision for the establishment of training

and education programs designed to provide a maxi-

mum opportunity for employees to advance so as to

perform at their highest potential; and

(2) adescription of the qualifications in terms of

training and experience relating to equal employ-

ment opportunity for the principal and operating

l&Sa

officials of each such department, agency, or unit

responsible for carrying out the equal employment

opportunity program and of the allocation of per-

sonnel and resources proposed by such department,

agency, or unit to carry out its equal employment

opportunity program.

With respect to employment in the Library of Congress,

authorities granted in this subsection to the Equal

Employment Opportunity Commission shall be exer-

cised by the Librarian of Congress.

ment for redress of grievances; time for bringing

of action; head of department, agency, or unit as

defendant

Within 90 days of receipt of notice of final action

taken by a department, agency, or unit referred to in

subsection (a) of this section, or by the Equal Employ-

ment Opportunity Commission upon an appeal from a

decision or order of such department, agency, or unit

on a complaint of discrimination based on race, color,

religion, sex or national origin, brought pursuant to

subsection (a) of this section, Executive Order 11478 or

any succeeding Executive orders, or after one hundred

and eighty days from the filing of the initial charge

with the department, agency, or unit or with the Equal

Employment Opportunity Commission on appeal from

a decision or order of such department, agency, or unit

until such time as final action may be taken by a

department, agency, or unit, an employee or applicant

for employment, if aggrieved by the final disposition of

his complaint, or by the failure to take final action on

his complaint, may file a civil action as provided in

section 2000e-5 of this title, in which civil action the

19a

head of the department, agency, or unit, as appropri-

ate, shall be the defendant.

(d) Section 2000e-5(f) through (k) of this title applicable

to civil actions

The provisions of section 2000e-5(f) through (k) of

this title, as applicable, shall govern civil actions brought

hereunder, and the same interest to compensate for

delay in payment shall be available as in cases involving

nonpublic parties..’

(e) Government agency or official not relieved of

responsibility to assure nondiscrimination in

employment or equal employment opportunity

Nothing contained in this Act shall relieve any Gov-

ernment agency or official of its or his primary respon-

sibility to assure nondiscrimination in employment as

required by the Constitution and statutes or of its or

his responsibilities under Executive Order 11478 relating

to equal employment opportunity in the Federal Gov-

ernment.

(f) Section 2000e-5(e)(3) of this title applicable to

compensation discrimination

Section 2000e-5(e)(3) of this title shall apply to com-

plaints of discrimination in compensation under this

section.

' So in original.

20a

5. 29 C.F.R. 1601.12 provides:

Contents of charge; amendment of charge.

(a) Each charge should contain the following:

(1) The full name, address and telephone number of

the person making the charge except as provided in

§ 1601.7;

(2) The full name and address of the person against

whom the charge is made, if known (hereinafter referred

to as the respondent);

(3) A clear and concise statement of the facts,

including pertinent dates, constituting the alleged

unlawful employment practices: See § 1601.15(b);

(4) 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; and

(5) A statement disclosing whether proceedings

involving the alleged unlawful employment practice

have been commenced before a State or local agency

charged with the enforcement of fair employment

practice laws and, if so, the date of such commencement

and the name of the agency.

(b) Notwithstanding the provisions of paragraph (a)

of this section, a charge is sufficient when the Commis-

sion 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. Such amendments and amendments alleging

2la

additional acts which constitute unlawful employment

practices related to or growing out of the subject matter

of the original charge will relate back to the date the

charge was first received. A charge that has been so

amended shall not be required to be redeferred.

6. 29 C.F.R. 1601.13 provides:

Filing; deferrals to State and local agencies.

(a) Initial presentation of a charge to the Commis-

sion. (1) Charges arising in jurisdictions having no FEP

agency are filed with the Commission upon receipt.

Such charges are timely filed if received by the Com-

mission within 180 days from the date of the alleged

violation.

(2) A jurisdiction having a FEP agency without

subject matter jurisdiction over a charge (e.g., an agency

which does not cover sex discrimination or does not

cover nonprofit organizations) is equivalent to a juris-

diction having no FEP agency. Charges over which a

FEP agency has no subject matter jurisdiction are filed

with the Commission upon receipt and are timely filed if

received by the Commission within 180 days from the

date of the alleged violation.

(3) Charges arising in jurisdictions having a FEP

agency with subject matter jurisdiction over the charges

are to be processed in accordance with the Commis-

sion’s deferral policy set forth below and the procedures

in paragraph (a)(4) of this section.

(i) In order to give full weight to the policy of sec-

tion 706(c) of title VII, which affords State and local fair

employment practice agencies that come within the

22a

provisions of that section an opportunity to remedy

alleged discrimination concurrently regulated by title

VII, the ADA, or GINA and State or loca! law, the

Commission adopts the following procedures with

respect to allegations of discrimination filed with the

Commission. It is the intent of the Commission to

thereby encourage the maximum degree of effective-

ness in the State and local agencies. The Commission

shall endeavor to maintain close communication with

the State and local agencies with respect to all matters

forwarded to such agencies and shall provide such

assistance to State and local agencies as is permitted by

law and as is practicable.

(ii) Section 706(c) of title VII grants States and

their political subdivisions the exclusive right to process

allegations of discrimination filed by a person other

than a Commissioner for a period of 60 days (or 120 days

during the first year after the effective date of the

qualifying State or local law). This right exists where,

as set forth in § 1601.70, a State or local law prohibits

the employment practice alleged to be unlawful and a

State or local agency has been authorized to grant or

seek relief. After the expiration of the exclusive pro-

cessing period, the Commission may commence pro-

cessing the allegation of discrimination.

(iii) A FEP agency may waive its right to the period

of exclusive processing of charges provided under sec-

tion 706(c) of title VII with respect to any charge or

category of charges. Copies of all such charges will be

forwarded to the appropriate FEP agency.

23a

(4) The following procedures shall be followed with

respect to charges which arise in jurisdictions having a

FEP agency with subject matter jurisdiction over the

charges:

(i) Where any document, whether or not verified,

is received by the Commission as provided in § 1601.8

which may constitute a charge cognizable under title

VII, the ADA, or GINA, and where the FEP agency has

not waived its right to the period of exclusive processing

with respect to that document, that document shall be

deferred to the appropriate FEP agency as provided in

the procedures set forth below:

(A) All such documents shall be dated and time

stamped upon receipt.

(B) A copy of the originial document, shall be trans-

mitted by registered mail, return receipt requested, to

the appropriate FEP agency, or, where the FEP agency

has consented thereto, by certified mail, by regular mail

or by hand delivery. State or local proceedings are

deemed to have commenced on the date such document

is mailed or hand delivered.

person filing a charge on behalf of such person shall be

notified, in writing, that the document which he or she

sent to the Commission has been forwarded to the FEP

agency pursuant to the provisions of section 706(c) of

title VII.

(ii) Such charges are deemed to be filed with the

Commission as follows:

(A) Where the document on its face constitutes a

charge within a category of charges over which the FEP

agency has waived its rights to the period of exclusive

24a

processing referred to in paragraph (a)(3)(iii) of this

section, the charge is deemed to be filed with the

Commission upon receipt of the document. Such filing

is timely if the charge is received within 300 days from

the date of the alleged violation.

(B) Where the document on its face constitutes a

charge which is not within a category of charges over

which the FEP agency has waived its right to the period

of exclusive processing referred to in paragraph

(a)(3)(iii) of this section, the Commission shall process

the document in accordance with paragraph (a)(4)(i) of

this section. The charge shall be deemed to be filing

with the Commission upon expiration of 60 (or where

appropriate, 120) days after deferral, or upon the ter-

mination of FEP agency proceedings, or upon waiver of

the FEP agency’s right to exclusively process the

charge, whichever is earliest. Where the FEP agency

earlier terminates its proceedings or waives its right to

exclusive processing of a charge, the charge shall be

deemed to be filed with the Commission on the date the

FEP agency terminated its proceedings or the FEP

agency waived its right to exclusive processing of the

charge. Such filing is timely if effected within 300 days

from the date of the alleged violation.

(b) Initial presentation of a charge to a FEP

agency. (1) When a charge is initially presented to a

FEP agency and the charging party requests that the

charge be presented to the Commission, the charge will

be deemed to be filed with the Commission upon expi-

ration of 60 (or where appropriate, 120) days after a

written and signed statement of facts upon which the

charge is based was sent to the FEP agency by regis-

tered mail or was otherwise received by the FEP agency,

25a

or upon the termination of FEP agency proceedings, or

upon waiver of the FEP agency’s right to exclusively

process the charge, whichever is earliest. Such filing is

timely if effected within 300 days from the date of the

alleged violation.

(2) When a charge is initially presented to a FEP

agency but the charging party does not request that the

charge be presented to the Commission, the charging

party may present the charge to the Commission as

follows:

(i) If the FEP agency has refused to accept a

charge, a subsequent submission of the charge to the

Commission will be processed as if it were an initial

presentation in accordance with paragraph (a) of this

section.

(ii) If the FEP agency proceedings have terminated,

the charge may be timely filed with the Commission

within 30 days of receipt of notice that the FEP agency

proceedings have been terminated or within 300 days

from the date of the alleged violation, whichever is

earlier.

(iii) If the FEP agency proceedings have not been

terminated, the charge may be presented to the Com-

mission within 300 days from the date of the alleged

violation. Once presented, such a charge will be

deemed to be filed with the Commission upon expiration

of 60 (or where appropriate, 120) days after a written

and signed statement of facts upon which the charge is

based was sent to the FEP agency by certified mail or

was otherwise received by the FEP agency, or upon the

termination of the FEP agency proceedings, or upon

waiver of the FEP agency’s right to exclusively process

26a

the charge, whichever is earliest. To be timely, how-

ever, such filing must be effected within 300 days from

the date of the alleged violation.

(ec) Agreements with Fair Employment Practice

agencies. Pursuant to section 705(g)(1) and section

706(b) of title VII, the Commission shall endeavor to

enter into agreements with FEP agencies to establish

effective and integrated resolution procedures. Such

agreements may include, but need not be limited to,

cooperative arrangements to provide for processing of

certain charges by the Commission, rather than by the

FEP agency during the period specified in section

706(c) and section 706(d) of title VII.

(d) Preliminary relief. When a charge is filed with

the Commission, the Commission may make a prelimi-

nary investigation and commence judicial action for

immediate, temporary or preliminary relief pursuant to

section 706(f)(2) of title VII.

(e) Commissioner charges. A charge made by a

member of the Commission shall be deemed filed upon

receipt by the Commission office responsible for inves-

tigating the charge. The Commission will notify a FEP

agency when an allegation of discrimination is made by

a member of the Commission concerning an employ-

ment practice occurring within the jurisdiction of the

FEP agency. The FEP agency will be entitled to pro-

cess the charge exclusively for a period of not less than

60 days if the FEP agency makes a written request to

the Commission within 10 days of receiving notice that

the allegation has been filed. The 60-day period shall

be extended to 120 days during the first year after the

effective date of the qualifying State or local law.

27a

7. 29C.F.R. 1601.14 provides:

Service of charge or notice of charge.

(a) Within ten days after the filing of a charge in the

appropriate Commission office, the Commission shall

serve respondent a copy of the charge, by mail or in per-

son, except when it is determined that providing a copy

of the charge would impede the law enforcement func-

tions of the Commissiion. Where a copy of the charge

is not provided, the respondent will be served with a

notice of the charge within ten days after the filing of

the charge. The notice shall include the date, place and

circumstances of the alleged unlawful employment

practice. Where appropriate, the notice may include

the identity of the person or organization filing the

charge.

(b) District Directors, Field Directors, Area Direc-

tors, Local Directors, the Director of the Office of Field

Programs, and the Director of Field Management

Programs, or their designees, are hereby delegated the

authority to issue the notice described in paragraph (a)

of this section.

8. 29C.F.R. 1601.28 provides:

Notice of right to sue: Procedure and authority.

(a) Issuance of notice of right to swe upon request.

(1) When a person claiming to be aggrieved requests, in

writing, that a notice of right to sue be issued and the

charge to which the request relates is filed against a

respondent other than a government, governmental

agency or political subdivision, the Commission shall

promptly issue such notice as described in § 1601.28(e)

28a

to all parties, at any time after the expiration of one

hundred eighty (180) days from the date of filing of the

charge with the Commission, or in the case of a Com-

missioner charge 180 days after the filing of the charge

or 180 days after the expiration of any period of refer-

ence under section 706(d) of title VII as appropriate.

(2) When a person claiming to be aggrieved re-

quests, in writing, that a notice of right to sue be issued,

and the charge to which the request relates is filed

against a respondent other than a government, govern-

mental agency or political subdivision, the Commission

may issue such notice as described in § 1601.28(e) with

copies to all parties, at any time prior to the expiration

of 180 days from the date of filing of the charge with the

Commission; provided that the District Director, the

Field Director, the Area Director, the Local Director,

the Director of the Office of Field Programs or upon

delegation, the Director of Field Management Pro-

grams has determined that it is probable that the

Commission will be unable to complete its administra-

tive processing of the charge within 180 days from the

filing of the charge and has attached a written certifi-

cate to that effect.

(3) Issuance of a notice of right to sue shall termi-

nate further proceeding of any charge that is not a Com-

missioner charge unless the District Director; Field

Director; Area Director; Local Director; Director of the

Office of Field Programs or upon delegation, the Director

of Field Management Programs; or the General Coun-

sel, determines at that time or at a later time that it

would effectuate the purpose of title VII, the ADA, or

GINA to further process the charge. Issuance of a

29a

notice of right to sue shall not terminate the processing

of a Commissioner charge.

(4) The issuance of a notice of right to sue does not

preclude the Commission from offering such assistance

to a person issued such notice as the Commission deems

necessary or appropriate.

(b) Issuance of notice of right to sue following

Commission disposition of charge. (1) Where the Com-

mission has found reasonable cause to believe that title

VII, the ADA, or GINA has been violated, has been

unable to obtain voluntary compliance with title VII, the

ADA, or GINA, and where the Commission has decided

not to bring a civil action against the respondent, it will

issue a notice of right to sue on the charge as described

in § 1601.28(e) to:

(i) The person claiming to be aggrieved, or,

(ii) In the case of a Commissioner charge, to any

member of the class who is named in the charge, iden-

tified by the Commissioner in a third-party certificate,

or otherwise identified by the Commission as a member

of the class and provide a copy thereof to all parties.

(2) Where the Commission has entered into a con-

ciliation agreement to which the person claiming to be

aggrieved is not a party, the Commission shall issue a

notice of right to sue on the charge to the person

claiming to be aggrieved.

(3) Where the Commission has dismissed a charge

pursuant to § 1601.18, it shall issue a notice of right to

sue as described in § 1601.28(e) to:

(i) The person claiming to be aggrieved, or,

30a

(ii) In the case of a Commissioner charge, to any

member of the class who is named in the charge, iden-

tified by the Commissioner in a third-party certificate,

or otherwise identified by the Commission as a member

of the class, and provide a copy thereof to all parties.

(4) The issuance of a notice of right to sue does not

preclude the Commission from offering such assistance

to a person issued such notice as the Commission deems

necessary or appropriate.

(ec) The Commission hereby delegates authority to

District Directors, Field Directors, Area Directors,

Local Directors, the Director of the Office of Field Pro-

grams, or Director of Field Management Programs or

their designees, to issue notices of right to sue, in

accordance with this section, on behalf of the Commis-

sion. Where a charge has been filed on behalf of a

person claiming to be aggrieved, the notice of right to

sue shall be issued in the name of the person or organ-

ization who filed the charge.’

(d) Notices of right-of-sue for charges against

Governmental respondents. In all cases where the

respondent is a government, governmental agency, or a

political subivision, the Commission will issue the notice

of right to sue when there has been a dismissal of a

charge. The notice of right to sue will be issued in

accordance with § 1601.28(e). In all other cases where

' Formal Ratification-Notice is hereby given that the EEOC at a

Commission meeting on March 12, 1974, formally ratified the acts

of the District Directors of EEOC District Offices in issuing notices

of right to sue pursuant to Commission practice instituted on

October 15, 1969, and continued through March 18, 1974. 39 FR

10178 (March 18, 1974).

sla

the respondent is a government, governmental agency,

or political subdivision, the Attorney General will issue

the notice of right to sue, including the following cases:

(1) When there has been a finding of reasonable

cause by the Commission, there has been a failure of

conciliation, and the Attorney General has decided not

to file a civil action; and

(2) Where a charging party has requested a notice

of right to sue pursuant to § 1601.28(a)(1) or (2). In

cases where a charge of discrimination results in a

finding of cause in part and no cause in part, the case

will be treated as a “cause” determination and will be

referred to the Attorney General.

(e) Content of notice of right to sue. The notice of

right to sue shall include:

(1) Authorization to the aggrieved person to bring a

civil action under title VII, the ADA, or GINA pursuant

to section 706(f)(1) of title VII, section 107 of the ADA,

or section 207 of GINA within 90 days from receipt of

such authorization;

(2) Advice concerning the institution of such civil

action by the person claiming to be aggrieved, where

appropriate;

(3) A copy of the charge;

(4) The Commission's decision, determination, or

dismissal, as appropriate.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.