No. 00-1072 

In the Supreme Court of the United States 

LEONARD EDELMAN, PETITIONER 

v. 

LYNCHBURG COLLEGE 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
AS AMICI CURIAE SUPPORTING PETITIONER 

NICHOLAS M. INZEO 

Acting Deputy General Counsel 

PHILIP B. SKLOVER 

Associate General Counsel 

VINCENT J. BLACKWOOD 

Assistant General Counsel 

BARBARA L. SLOAN 

Attorney 
Equal Employment 

Opportunity Commission 
Washington, D.C. 20507 
THEODORE B. OLSON 
Solicitor General 

Counsel of Record 

RALPH F. BOYD, JR. 

Assistant Attorney General 

PAUL D. CLEMENT 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Title VII of the Civil Rights Act of 1964 provides that a 
charge of employment discrimination filed with the Equal 
Employment Opportunity Commission (Commission or 
EEOC) must be verified by the complainant under oath or 
affirmation, 42 U.S.C. 2000e-5(b), and must be filed within 
certain limitation periods, 42 U.S.C. 2000e-5(e)(1). An 
EEOC regulation, 29 C.F.R. 1601.12(b), provides that a 
discrimination charge that has been filed with the Com- 
mission within the statutory limitation period may be 
amended to cure “technical defects or omissions, including 
failure to verify the charge,” and that an amendment to 
verify the charge “will relate back to the date the charge was 
first received” by EEOC, even if the verification of the 
charge is made after the statutory limitation period for filing 
a charge of discrimination. The question presented is 
whether 29 C.F.R. 1601.12(b) is valid. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States and the Equal Employment 

Opportunity Commission .......................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

7 

Argument: 

The EEOC’s regulation providing that an otherwise 
sufficient, timely-filed charge of discrimination may 
be verified after the charge-filing period is valid and 
reasonable ................................................................................ 9 

A. The text of Title VII does not require a charge 
of discrimination to be verified within the 
limitation period for filing a charge with EEOC ...... 

9 

B. Background legal principles make clear that a 
timely filed complaint ordinarily may be verified 
after the limitation period for the complaint 
has expired ....................................................................... 
12 

C. The Commission’s regulation is reasonable and 
entitled to deference ...................................................... 
18 

Conclusion ....................................................................................... 27 

TABLE OF AUTHORITIES 

Cases: 

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

15 

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

16 

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

11, 12 

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

16 

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

Cir. 1969) ................................................................................. 

20, 21 

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

1911) ......................................................................................... 15 

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

Ct. App. 1942) ......................................................................... 

15 

Callanan v. United States, 364 U.S. 587 (1961) ............... 13 

(III) 

IV 

Cases—Continued: Page 

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

(9th Cir. 1984) ......................................................................... 

20 

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

14 

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

Inc., 467 U.S. 837 (1984) .................................................. 

5, 9, 18 

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

(Mont. 1936) ............................................................................ 

14, 16 

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

(7th Cir. 1968) ......................................................................... 

20 

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

15 

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

15 

Colonial Storage Mgmt. v. Board of Revision, 679 

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

14-15 

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

832 (Mont. 1929) ..................................................................... 

14 

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

15 

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

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

A.2d 842 (1978) ....................................................................... 

16 

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

15 

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

(1980) ........................................................................................ 22 

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

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

17 

Drury Displays, Inc. v. Board of Adjustment, 

760 S.W.2d 112 (Mo. 1988) .............................................. 

14, 15-16 

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

16 

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

627 A.2d 482 (D.C. 1993) ....................................................... 

14, 15 

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

(1981) ........................................................................................ 

19, 20 

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

107 (1988) ...................................................................... 

4, 18, 19, 25 

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

21, 22, 23 

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

V 

Cases—Continued: Page 

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

14, 15, 16 

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

16 

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

Supp. 375 (D.N.J. 1941) ......................................................... 

16 

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

15 

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

(W.D. Ky. 1901) ...................................................................... 

16 

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

(Wash. 1935) ............................................................................ 

15, 16 

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

16 

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

17 

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

1939) ......................................................................................... 16 

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

(8th Cir. 1993) ......................................................................... 

20 

Industrial State Bank v. Engineering Serv. & 

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

15 

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

(Ala. 1948) ............................................................................... 

15 

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

14 

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

14 

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

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

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

1919) ......................................................................................... 15 

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

15 

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

15 

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

1899) ......................................................................................... 16 

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

16 

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

Ct. 1980) ................................................................................... 15 

VI 

Cases—Continued: Page 

Lincoln Nat’l Bank v. Mundinger, 528 N.E. 2d 829 

(Ind. Ct. App. 1988) ............................................................... 

14, 15 

Love v. Pullman Co., 404 U.S. 522 (1972) ......................... 

18 

Maliszewski v. Human Rights Comm’n, 646 N.E.2d 

625 (Ill. App. Ct. 1995) .......................................................... 

15 

McMath v. Parsons, 2 N.W. 703 (Minn. 1879) .................. 

14 

Mellon Bank, N.A. v. Coppage, 253 S.E.2d 202 

(Ga. 1979) ................................................................................. 

15 

Miller v. Board of Assessors, 698 N.E.2d 906 

(N.Y. 1997) .............................................................................. 

14 

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

17 

Morissette v. United States, 342 U.S. 246 (1952) ............. 

13 

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

18 

Patterson v. Patterson, 190 P.2d 887 (Kan. 1948) ............ 

14 

People v. Birch Sec. Co., 196 P.2d 143 (Cal. Dist. 

Ct. App. 1948), cert. denied, 336 U.S. 936 (1949) ............. 

14 

People ex rel. New York City Omnibus Corp. v. 

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

14, 15 

Peterson v. City of Witchita, 888 F.2d 1307 (10th 

Cir. 1989), cert. denied, 495 U.S. 932 (1990) ..................... 

20, 22 

Preparatory Temple & House of Prayer for all 

People, Inc. v. Seery, 195 A.2d 900 (N.J. Super. 

Ct. Ch. Div. 1963) ................................................................... 

14 

Pulliam v. Pulliam, 183 P.2d 220 (Kan. 1947) ................. 

15 

Reno v. Koray, 515 U.S. 50 (1995) ...................................... 

19 

Robbins, In re, 292 F. 653 (S.D. Fla. 1923) ........................... 

16 

Royal Circle of Friends Bldg. Corp., In re, 159 F.2d 

539 (7th Cir. 1947) .................................................................. 

16 

Rush v. Rush, 46 Iowa 648 (1877) ....................................... 

14, 15 

Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455 

(8th Cir. 1998) ......................................................................... 

20 

Smith v. Meyers, 253 P.2d 615 (Ariz. 1953) ....................... 

15 

Southside Civic Ass’n v. Warrington, 635 So. 2d 

721 (La. Ct. App.), petition for writ denied, 639 So. 2d 

1168 (La. 1994) ........................................................................ 

15 

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

VII 

Cases—Continued: Page 

State ex rel. Williams v. Jones, 164 S.W.2d 823 

(Tenn. 1942) ............................................................................ 

15, 16 

Stoltman v. Stoltman, 429 N.W.2d 220 (Mich. Ct. 

App. 1988) ............................................................................... 

14 

Tehansky v. Wilson, 428 P.2d 375 (Nev. 1967) ................ 

14 

Tinsley v. First Union Nat’l Bank, 155 F.3d 435 

(4th Cir. 1998) ......................................................................... 

4 

Tracy v. Robbins, 40 F.R.D. 108 (D.S.C. 1966), 

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

16 

United Farm Workers of Am. v. Agricultural 

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

14, 15 

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

(2001) ........................................................................................ 19 

United States v. 1982 Yukon Delta Houseboat, 

774 F.2d 1432 (9th Cir. 1985) ............................................... 

16 

United States v. United States Currency in the 

Amount of $103,387.27, 863 F.2d 555 (7th Cir. 

1988) ......................................................................................... 16 

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

Cir. 2001) ................................................................................. 

20 

Vater v. Vater’s Adm’rs, 113 S.W.2d 1145 (Ky. 1938) ..... 

15 

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

228 (5th Cir. 1969) .................................................................. 

20 

Workman v. Workman, 46 N.E.2d 718 (Ind. Ct. 

App. 1943) ............................................................................... 

14, 15 

Yuri Yajima v. United States, 6 F.R.D. 260 

(E.D.N.Y. 1946) ...................................................................... 

16 

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

(1982) ........................................................................................ 17 

Statutes, regulations, executive order and rules: 

Act of Mar. 3, 1887, ch. 359, § 5, 24 Stat. 506 ....................... 
13 

Act of Mar. 3, 1911, ch. 231, § 159, 36 Stat. 1139 ................. 
14 

Administrative Procedure Act , 5 U.S.C. 553(b)(A) ........... 
19 

Age Discrimination in Employment Act of 1967, 29 

U.S.C. 626(d) ........................................................................... 10 

VIII 

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

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

U.S.C. 12111 et seq. .............................................................. 

1, 2, 21 

42 U.S.C. 12117 .................................................................. 
2 

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

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

§ 701, 42 U.S.C. 2000e ....................................................... 
10 

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

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

§ 706(b), 42 U.S.C. 2000e-5(b) (1972) ............................. 
20 

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

§ 706(c), 42 U.S.C. 2000e-5(c) .......................................... 

25 

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

§ 706(e)(1), 42 U.S.C. 2000e-5(e)(1) ................................ 
4, 6, 7 

§ 713, 42 U.S.C. 2000e-12(a) ............................................ 
2, 18 

11 U.S.C. 41(c) (1925) ............................................................... 
13 

28 U.S.C. 265 (1925) .................................................................. 
13-14 

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

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

22 Va. Admin. Code (1990): 
§ 25-10-20 ............................................................................ 
25 

§ 25-10-50 ............................................................................ 
25 

Exec. Order No. 11,246 ............................................................ 
25 

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

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

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

29 C.F.R.: 

Section 1601.11 (1966) ........................................................... 

19 

Section 1601.12(a) .................................................................. 
12 

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

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

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

Section 1601.13(c) .................................................................. 
4 

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

41 C.F.R. 60-1.23 ....................................................................... 
25 

Fed. R. App. P: 

Rule 3 ....................................................................................... 

11 

Rule 4 ....................................................................................... 11 

IX 

Regulation and rules—Continued: 
Page 

Fed. R. Civ. P.: 

Rule 11(a) ................................................................................ 

11, 13 

Rule 23.1 .................................................................................. 
14 

Rule 65(b) ................................................................................ 
14 

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

Rule C(2)(a) ............................................................................. 

14 

Rule C(6)(a)(i) ......................................................................... 
14 

Miscellaneous: 

Clark, Charles E., Handbook of the Law of Code Plead- 
ing (2d ed. 1947) ..................................................................... 

13 
49 C.J. (1930) .............................................................................. 
17 

118 Cong. Rec. 7167 (1972) ...................................................... 21 

In the Supreme Court of the United States 

No. 00-1072 

LEONARD EDELMAN, PETITIONER 

v. 

LYNCHBURG COLLEGE 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
AS AMICI CURIAE SUPPORTING PETITIONER 

INTEREST OF THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

The Equal Employment Opportunity Commission (Com- 
mission or EEOC) has primary responsibility for administer- 
ing and enforcing Title VII of the Civil Rights Act of 1964, 42 
U.S.C. 2000e et seq., and Title I of the Americans with Dis- 
abilities Act of 1990 (ADA), 42 U.S.C. 12111 et seq. The 
Attorney General also has enforcement responsibilities 
under Title VII and the ADA with respect to public em- 
ployment. Enforcement of both statutes depends on the 
timely filing of a charge of discrimination, and both statutes 
require that a charge of discrimination be in writing and 
under oath or affirmation. See 42 U.S.C. 2000e-5(b) (verifi- 
cation requirement under Title VII); 42 U.S.C. 2000e-5(e) 

(1) 

2 

(time limits for filing charges under Title VII); 42 U.S.C. 
12117 (ADA incorporates Title VII’s procedural provisions). 

In 1966, pursuant to its statutory authority to issue “suit- 
able procedural regulations to carry out the provisions of 
[Title VII],” 42 U.S.C. 2000e-12(a), EEOC promulgated a 
regulation providing that “technical defects or omissions, 
including failure to verify,” in an otherwise sufficient, timely- 
filed charge may be cured by amendment outside the 
statutory limitation period, and that “[s]uch amendments 

* * * will relate back to the date the charge was first 
received.” 29 C.F.R. 1601.12(b). The court of appeals in this 
case invalidated that EEOC regulation and held, to the con- 
trary, that a charge of discrimination must be dismissed 
unless it has been both filed and verified within the limita- 
tion period. 

The Commission has an obvious interest in the validity of 
its regulation. In addition, under Title VII and Title I of the 
ADA, the Commission and the Attorney General cannot take 
enforcement action on a discrimination charge unless it has 
been timely filed, and so the court of appeals’ decision 
directly affects their ability to enforce those statutes. The 
United States and EEOC filed an amicus curiae brief in this 
case at the petition stage in response to the Court’s order 
inviting the Solicitor General to express the views of the 
United States. 

STATEMENT 

1. On June 6, 1997, respondent, a private college, denied 
tenure to petitioner, a biology professor, despite favorable 
recommendations from the chair of his department and a 
faculty committee. Pet. App. 2a. On November 14, 1997 (160 
days later), petitioner sent a detailed letter to EEOC, alleg- 
ing that respondent denied him tenure because of his sex, 
and that respondent’s dean was systematically purging 
white men from the faculty. Pet. 2; Br. in Opp. 2. Petitioner 

3 

ended the letter by stating: “I hereby file a charge of em- 
ployment discrimination against [respondent] * * * and I 
call upon the EEOC to investigate this case in an attempt to 
rectify this unjust and unfair situation before any more 
people are subjected to this illegal discrimination.” C.A. 
App. 85-86. The letter was signed by petitioner, but was not 
executed under oath or affirmation. Id. at 86; Pet. App. 4a. 

On November 26, 1997, petitioner’s attorney wrote to 
EEOC, stating that petitioner “would like to have a personal 
interview with an EEOC investigator prior to the final 
charging documents being served on the college.” Pet. App. 
2a. That letter added that “[i]t is my understanding that 
delay occasioned by the interview will not compromise the 
filing date, which will remain as November 14, 1997. Please 
advise if my understanding in this regard is not correct.” 
Ibid. 

On December 3, 1997, an EEOC employee sent petitioner 
a form letter, without acknowledging his attorney’s corre- 
spondence. The form letter stated that petitioner should 
telephone EEOC to arrange an interview. Petitioner’s inter- 
view was eventually scheduled for March 3, 1998. After the 
interview, an EEOC employee drafted an EEOC Form 5 
Charge of Discrimination and mailed it to petitioner on 
March 18, 1998, for petitioner’s review and verified signa- 
ture. The EEOC received the verified charge back from 
petitioner on April 15, 1998, 313 days after the last alleged 
discriminatory employment practice. On March 26, 1999, 
after completing its investigation, EEOC issued petitioner a 
notice of right to sue. Pet. App. 2a-3a. 

2. Petitioner initially filed suit against respondent in 
Virginia state court and alleged various state-law claims. He 
later added a count alleging sex discrimination in violation of 
Title VII, 42 U.S.C. 2000e-2(a)(1). Respondent removed the 
action to federal district court and then moved to dismiss the 
Title VII claim on the ground that petitioner had failed to 

4 

file a valid charge of discrimination with EEOC within the 
applicable statutory limitation period. Pet. App. 3a. 
Respondent argued that a “charge” was not filed until 
EEOC received the verified Form 5 Charge on April 15, 
1998, after the expiration of the applicable 300-day limitation 
period for filing a Title VII charge. See 42 U.S.C. 2000e- 
5(e)(1).1 Petitioner contended that his initial letter of 
November 14, 1997, complaining of discrimination was a 
timely charge of discrimination and that, under an EEOC 
regulation, 29 C.F.R. 1601.12(b), his subsequent verification 
(on the Form 5 charge) related back to that date. Although 
respondent acknowledged that regulation, it argued, inter 
alia, that the regulation conflicted with the underlying 
statute. See Br. in Opp. 5 n.1. 

Without questioning the validity of the EEOC regulation, 
the district court agreed with respondent that petitioner had 

1 The basic limitation period for filing a Title VII discrimination 
charge with EEOC is 180 days after the unlawful employment practice. 42 
U.S.C. 2000e-5(e)(1). If the charging party has filed a discrimination 
charge with a qualified state or local agency, then the statutory limitation 
period for filing a charge with EEOC is 300 days. 42 U.S.C. 2000e-5(e)(1). 
(Such state and local agencies are commonly referred to as “deferral” 
agencies. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 112 
(1988); Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 439-442 (4th Cir. 
1998).) In addition, if a complainant submits a charge of discrimination to 
EEOC based on employment practices that occurred in a State or locality 
that has a “deferral” agency, the 300-day limitations period applies and the 
EEOC refers the discrimination charge to the appropriate state or local 
agency for processing, even if the complainant has not filed a 
discrimination complaint directly with that state or local agency. See 29 
C.F.R. 1601.13(a)(3)-(4) and (c); Tinsley, 155 F.3d at 439. Virginia has such 
a deferral agency, the Virginia Council on Human Rights (VCHR). See 29 
C.F.R. 1601.74(a); Tinsley, 155 F.3d at 440. A worksharing agreement 
between EEOC and VCHR provides that EEOC’s receipt of charges on 
VCHR’s behalf is deemed to “automatically initiate the proceedings of 
both EEOC and [VCHR]” for purposes of fulfilling Title VII’s deferral 
requirements. C.A. App. 118. 

5 

failed to file a timely charge, dismissed petitioner’s Title VII 
claim, and remanded the remainder of the case to state 
court. Pet. App. 16a-17a. Although the district court noted 
that petitioner initially wrote to the Commission to complain 
about employment discrimination by respondent on Novem- 
ber 14, 1997, and that his attorney wrote to the Commission 
on November 26, 1997—both dates well within the 300-day 
limitation period—it concluded that “neither [petitioner] nor 
the EEOC proceeded as if the November 1997 letter[s] did, 
or were intended to, commence proceedings.” Id. at 22a-23a. 

3. The court of appeals affirmed, but the panel was 
divided in its reasoning. Pet. App. 1a-13a (majority); id. at 
14a-15a (concurrence). 

a. The majority did not take issue with petitioner’s sub- 
mission that, under the Commission’s regulations, EEOC 
would have treated his initial, non-verified letter as a charge 
of discrimination. It concluded, however, that EEOC’s regu- 
lation permitting the verification to relate back to the filing 
of the initial complaint is contrary to the statute and there- 
fore invalid. Pet. App. 1a-2a. 

The majority applied the framework for review of agency 
regulations established in Chevron U.S.A. Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837, 842-843 
(1984). Pet. App. 5a. Identifying “[t]he precise question at 
issue in this case” as “whether verification must occur within 
the statutory limitations period,” the court ruled that “Con- 
gress has unambiguously spoken” on that question. Id. at 6a. 
The court noted that Section 706(b) of Title VII, 42 U.S.C. 
2000e-5(b), specifies that “[c]harges shall be in writing under 
oath or affirmation and shall contain such information and be 
in such form as the Commission requires.” The “plain mean- 
ing of this language,” stated the court, “compels the con- 
clusion that if a discrimination claim is not in writing, under 
oath or affirmation, containing the information and in the 

6 

form required by the Commission, it is not a charge.” Pet. 
App. 6a. 

In addition, the court stated that Section 706(e)(1) of Title 
VII, 42 U.S.C. 2000e-5(e)(1), “affirmatively and plainly 
establishes the time period within which a charge must be 
filed.” Pet. App. 6a. Thus, the court concluded, “[b]ecause a 
charge requires verification [and] because a charge must be 
filed within the limitations period, it follows that a charge 
must be verified within the limitations period.” Ibid. 
(citations omitted). Because it found that the statutory 
language resolved the matter at hand, the court rejected 
petitioner’s argument that EEOC’s regulation is entitled to 
deference. Ibid. 

b. Judge Luttig concurred only in the judgment. Pet. 
App. 14a-15a. He would have affirmed the dismissal of peti- 
tioner’s claim on a narrower ground similar to that relied on 
by the district court—namely, that petitioner did not intend 
his initial letter to the Commission to be treated as a charge 
of discrimination. Id. at 14a.2 
Judge Luttig stated that he was “sufficiently uncom- 
fortable” with the broader ground relied on by the majority 
—that “verification may never relate back” after expiration 
of the limitation period—that he was unable to concur in that 
ruling. Pet. App. 14a. He noted that “we are not confronted 
with a single statute stating either by terms or in effect that 
‘a verified charge must be filed within [300] days of a dis- 
criminatory action.’ ” Ibid. Rather, he observed, “we are 
presented with two statutes, the first providing that a 
charge shall be filed within [300] days of the unlawful em- 
ployment practice, and the second providing that charges 

2 If the case is remanded, as we suggest below, respondent would be 
free to pursue its alternative argument that petitioner did not intend his 
initial letter to the Commission to be a “charge.” See p. 5, supra; but see 
pp. 2-3, supra. 

7 

shall be in writing and include an oath or affirmation.” Ibid. 
He further noted that “there is not necessarily the nexus 
required” between those two statutes to sustain the ma- 
jority’s reading. Ibid. “[I]f the two statutes are so read as 
temporally independent of each other, or at least not tempo- 
rally coterminous, then there is no statutory requirement 
that the charge be verified within the [300] days, and re- 
lation back would be available by regulation.” Ibid. 

Finally, Judge Luttig observed, “there is no statutory 
definition of ‘charge’ ” in Title VII. Pet. App. 14a-15a. 
Therefore, he continued, “the ‘charge’ that must be filed 
within [300] days need not—at least need not by 
definition—be an allegation that is verified * * * . Insofar 
as the statute informs us, the ‘charge’ that must be filed 
within [300] days can be merely an allegation of discrimi- 
nation; it need not be verified.” Id. at 15a. Accordingly, 
because he did not find EEOC’s regulation to be contrary to 
anything in the statute, he would have upheld that regu- 
lation. Ibid. 

SUMMARY OF ARGUMENT 

The EEOC regulation at issue in this case validly permits 
the Commission to take action on a verified charge of dis- 
crimination under Title VII as long as the charge is sub- 
mitted to the Commission within the limitation period for 
filing charges, even if the verification occurs after that 
period has expired. Although Title VII requires allegations 
in a charge of discrimination to be made “under oath or affir- 
mation,” 42 U.S.C. 2000e-5(b), and also imposes time limits 
for the filing of charges with EEOC, see 42 U.S.C. 
2000e-5(e)(1), it does not expressly require verification 
within the limitation period for filing charges, nor does it 
provide express time limits for verification. The two 
provisions address distinct aspects of the charge-filing pro- 
cess and do not incorporate each other by reference. Accord- 

8 

ingly, the court of appeals erred in concluding that the 
statute unambiguously requires verification to occur within 
the time limits for filing a charge. 

The regulation reflects well-established background legal 
principles. Federal and state courts have consistently ruled 
that, even when a complaint must be verified, as long as the 
complaint is timely filed, it may be verified after the expira- 
tion of the limitation period for the complaint. Nothing in 
Title VII suggests that Congress intended to depart from 
that principle, which was firmly established by the time of 
the statute’s enactment in 1964. 

The Commission’s regulation is reasonable and entitled to 
deference. The regulation is not only consistent with the 
common law rules governing verified complaints, it also 
reasonably accommodates the purposes of the charge, 
verification, and limitation provisions of Title VII. Because 
the Commission may not enforce Title VII against an em- 
ployer without a verification, the regulation accommodates 
the employer’s interest in avoiding frivolous complaints. 
Because the complaint must be filed with EEOC within the 
limitation period, it accommodates the employer’s interest in 
avoiding stale charges. At the same time, the regulation 
recognizes that most individuals who complain to the Com- 
mission are laypersons who will not know of the verification 
requirement. The regulation thus ensures that EEOC can 
enforce Title VII and that individuals do not inadvertently 
lose their rights but also protects employers against merit- 
less and stale claims. 

9 

ARGUMENT 

THE EEOC’S REGULATION PROVIDING THAT AN 
OTHERWISE SUFFICIENT, TIMELY-FILED CHARGE 
OF DISCRIMINATION MAY BE VERIFIED AFTER THE 

CHARGE-FILING PERIOD IS VALID AND REASON- 
ABLE 

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

Discrimination To Be Verified Within The Limitation 

Period For Filing A Charge With EEOC 

The issue in this case is whether an otherwise valid charge 
of discrimination must be verified by the complainant within 
the limitation period for filing a complaint. As always, the 
first question is “whether Congress has directly spoken to 
the precise question at issue.” Chevron U.S.A. Inc. v. 
Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). 
The court of appeals concluded that Congress had expressly 
provided that a charge must be verified within the limitation 
period for filing charges with the Commission. That con- 
clusion is erroneous. 

Section 706(b) of Title VII provides that “[c]harges shall 
be in writing under oath or affirmation and shall contain such 
information and be in such form as the Commission re- 
quires.” 42 U.S.C. 2000e-5(b). The court of appeals read 
Section 706(b) to provide that only a charge made under oath 
or affirmation can be a valid “charge.” According to the 
court of appeals, Section 706(b) effectively defines the word 
“charge” in Title VII to mean only a document executed 
under oath or affirmation. As the court of appeals put the 
matter, the “plain meaning” of Section 706(b) “compels the 
conclusion that if a discrimination claim is not in writing, 
under oath or affirmation, containing the information and in 
the form required by the Commission, it is not a charge.” 
Pet. App. 6a. Under the court of appeals’ reading, therefore, 

10 

a written complaint of discrimination that was filed with 
EEOC within the time limits and that otherwise complies 
with EEOC regulations is not a “charge” if it was not veri- 
fied within those time limits. 

The statute, however, does not define the term “charge” 
to mean only a complaint made under oath or affirmation. 
Indeed, as Judge Luttig pointed out (Pet. App. 14a-15a), 
Title VII does not contain a definition of “charge” at 
all—even though, in a separate definitional section, 42 U.S.C. 
2000e, it expressly defines several other terms—and a 
“charge” can mean simply “an allegation of discrimination.” 
Although Section 706(b) provides that “[c]harges shall be in 
writing under oath or affirmation,” that requirement is not 
framed as a definition; it does not state that the word charge 
“means” or “is” a document in writing under oath or 
affirmation. Rather, it directs that something that is a 
charge be sworn to or affirmed. 

The panel majority inferred a close nexus between Section 
706(b), which contains the verification requirement for 
charges, and Section 706(e), 42 U.S.C. 2000e-5(e), which sets 
forth the limitation periods for filing charges. Section 706(e) 
provides that, in deferral states such as Virginia (see note 1, 
supra), a charge “shall be filed [with EEOC] * * * within 
three hundred days after the alleged unlawful employment 
practice occurred.” 42 U.S.C. 2000e-5(e). 

The two provisions, however, address separate require- 
ments in the charge-filing process, and neither incorporates 
the other by reference. Section 706(b), which contains the 
verification requirement, does not refer to the time limits in 
Section 706(e), and Section 706(e) is silent as to whether the 
“charge” that must be filed within 300 days of the alleged 
discriminatory act must also be verified at the time of filing. 
While there is a statute of limitations for filing a charge, 
there is simply no statute of limitations for verification. As 
Judge Luttig observed (Pet. App. 14a), the statute does not 

11 

state either in express terms or in effect that “a verified 
charge must be filed within [300] days of a discriminatory 
action.” 

This court rejected a similar effort to superimpose Section 
706(e)’s time limits on a separate provision of Title VII in 
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-394 
(1982). In Zipes, this Court refused to read Section 706(c)’s 
timely-filing requirement as a jurisdictional prerequisite for 
purpose of Title VII’s jurisdictional provision, Section 706(f ). 
As the Court explained, the latter provision, “contains no 
reference to the timely-filing requirement. The provision 
specifying the time for filing charges with the EEOC 
appears as an entirely separate provision, and it does not 
speak in jurisdictional terms or refer in any way to the 
jurisdiction of the district courts.” Ibid. 

The court of appeals’ approach to Sections 706(b) and (e) 
likewise resembles the method of statutory interpretation 
that this Court rejected last Term in Becker v. Montgomery, 
121 S. Ct. 1801 (2001). In Becker, the Sixth Circuit concluded 
that a timely notice of appeal was ineffective because it was 
not signed by the party or his attorney, as required by 
Federal Rule of Civil Procedure 11(a), within the juris- 
dictional time period for filing a notice of appeal. The court 
of appeals held that the omission of the signature could not 
be corrected after that time period had expired. Id. at 1804- 
1805. This Court rejected the argument that, because Civil 
Rule 11(a) requires all papers filed in district court (including 
notices of appeal) to be signed, an unsigned notice of appeal 
was ineffective to meet the jurisdictional requirements gov- 
erning notices of appeal in Federal Rules of Appellate Pro- 
cedure 3 and 4. This Court declined to “dislodge the signa- 
ture requirement from its Civil Rule 11(a) moorings and 
make of it an Appellate Rule 3 jurisdictional specification.” 
Id. at 1807. Rather, the Court concluded that, although both 
Civil Rule 11(a) and the Appellate Rules set forth mandatory 

12 

requirements for notices of appeal, those Rules do not, either 
singly or in combination, provide “that the signature require- 
ment cannot be met after the appeal period expires.” Id. at 
1805. To the contrary, the Court held, “if the notice [of 
appeal] is timely filed and adequate in other respects, 
jurisdiction will vest in the court of appeals, where the case 
may proceed so long as the appellant promptly supplies the 
signature once the omission is called to his attention.” Id. 
at 1804. 

Just as the Civil Rules do not provide a time limit for 
signatures, Title VII does not specify a time limit for verifi- 
cation. The EEOC’s regulation fills that gap. That regu- 
lation first sets forth requirements for a charge of discrimi- 
nation, including that the charge contain information iden- 
tifying the complainant and the respondent, a statement of 
the pertinent facts, and other information. See 29 C.F.R. 
1601.12(a). The regulation then specifies the minimum infor- 
mation that a charge must contain to vest jurisdiction in the 
Commission—namely, that a charge will be sufficient “when 
the Commission receives from the person making the charge 
a written statement sufficiently precise to identify the par- 
ties, and to describe generally the action or practices com- 
plained of.” 29 C.F.R. 1601.12(b). The regulation further 
provides that “[a] charge may be amended to cure technical 
defects or omissions, including failure to verify the charge,” 
and that “[s]uch amendments * * * will relate back to the 
date the charge was first received.” Ibid. Thus, as with the 
Rules this Court examined in Becker, the EEOC regulation 
sets forth minimum requirements for a “charge” sufficient to 
vest the Commission with authority over the case, and then 
provides that other requirements for a charge may be 
supplied after the limitation period has expired. 

13 

B. Background Legal Principles Make Clear That A 

Timely-Filed Complaint Ordinarily May Be Verified 

After The Limitation Period For The Complaint Has 

Expired 

The court of appeals’ conclusion that a charge of discrimi- 
nation must be verified within the limitation period for filing 
charges is not only unsupported by the text of Title VII and 
contrary to EEOC’s gap-filling regulation, but it is also con- 
trary to well-settled background legal principles articulated 
in dozens of state and federal decisions both before and after 
Congress enacted Title VII. Those decisions establish that, 
even when a complaint or other court filing must be verified, 
verification may occur after the limitation period for the 
complaint has expired, as long as the unverified complaint 
was filed in time. Congress, a “lawyers’ body” (Callanan v. 
United States, 364 U.S. 587, 594 (1961)), is presumed to have 
been aware of that well-settled law when it enacted Title 

VII. Cf. Morissette v. United States, 342 U.S. 246, 262-263 
(1952). Accordingly, Title VII is most naturally read to 
incorporate this judicial rule into the administrative context 
of EEOC proceedings. At a minimum, EEOC’s regulation, 
incorporating the common law rule, is entitled to deference. 
See pp. 18-26, infra. 

In modern practice under the Federal Rules of Civil Pro- 
cedure and most corresponding state rules, pleadings gener- 
ally need not be verified or accompanied by an affidavit, 
except when “specifically provided by rule or statute.” Fed. 
R. Civ. P. 11(a). However, verification requirements were 
common in state proceedings through the first half of the 
twentieth century, especially in States that followed the 
Field Code’s requirement of verified complaints. See 
Charles E. Clark, Handbook of the Law of Code Pleading 
216-218 (2d ed. 1947). In those state proceedings and in the 
few instances in federal practice where verification has been 

14 

required, courts consistently held that the absence of veri- 
fication was a technical defect that could be cured outside 
the limitation period and did not deprive the court of juris- 
diction to act.3 

The traditional function of verification is to assure the 
truthfulness of the factual allegations contained in a plead- 
ing. See, e.g., Drury Displays, Inc. v. Board of Adjustment, 
760 S.W.2d 112, 114 (Mo. 1988) (en banc) (citation omitted). 
As the courts have explained, however, the verification is 
not itself an allegation or a part of the pleading.4 Thus, even 
when a court’s jurisdiction depends on certain facts or allega- 
tions, verification of those facts or allegations is not neces- 
sary to vest jurisdiction in the court.5 Omission of or errors 

3 As pertinent here, verification was previously required in the 
federal system for involuntary bankruptcy petitions (see 11 U.S.C. 41(c) 
(1925); Bankruptcy Act of 1898, ch. 541, § 18(c), 30 Stat. 551), in suits for 
money against the United States brought in district court (see 28 U.S.C. 
762 (1925); Act of Mar. 3, 1887, ch. 359, § 5, 24 Stat. 506), and for petitions 
for recovery of damages filed in the Claims Court (see 28 U.S.C. 265 
(1925); Act of Mar. 3, 1911, ch. 231, § 159, 36 Stat. 1139)). Verification is 
still required in the federal system in shareholder derivative actions (see 
Fed. R. Civ. P. 23.1), in support of an ex parte request for a temporary 
restraining order (see Fed. R. Civ. P. 65(b)), in certain in rem actions, in- 
cluding forfeiture actions (see 28 U.S.C. App., Supp. Rules C(2)(a) and 
C(6)(a)(i)), and for removal of actions from state courts (see 28 U.S.C. 1446 
(1994 & Supp. V 1999)). 

4 See, e.g., McMath v. Parsons, 2 N.W. 703, 704 (Minn. 1879); In re 
Estate of Sessions, 341 P.2d 512, 517 (Or. 1959); accord In re Estate of 
Shaffer, 454 P.2d 1, 3 (Kan. 1969); Chisholm v. Vocational Sch. for Girls, 
64 P.2d 838, 842 (Mont. 1936); In re Interest of L.D., 398 N.W.2d 91, 98 
(Neb. 1986). 

5 See, e.g., United Farm Workers of Am. v. Agricultural Labor 
Relations Bd., 694 P.2d 138, 139-140 (Cal. 1985) (en banc); People v. Birch 
Sec. Co., 196 P.2d 143, 146 (Cal. Dist. Ct. App. 1948), cert. denied, 336 U.S. 
936 (1949); Easter Seal Soc’y for Disabled Children v. Berry, 627 A.2d 482, 
489 (D.C. 1993); Lincoln Nat’l Bank v. Mundinger, 528 N.E.2d 829, 836 
(Ind. Ct. App. 1988); Workman v. Workman, 46 N.E.2d 718, 724 (Ind. Ct. 

15 

in a required verification are technical defects that may be 
remedied at any time before final judgment, and objection to 
the lack of verification may be waived if not raised 
promptly.6 Accordingly, verification may be supplied by 

App. 1943) (en banc); Chandler v. Taylor, 12 N.W.2d 590, 594 (Iowa 1944); 
Rush v. Rush, 46 Iowa 648, 650-651 (1877); In re Estate of Shaffer, 454 
P.2d at 3; Patterson v. Patterson, 190 P.2d 887, 889 (Kan. 1948); Stoltman 

v. Stoltman, 429 N.W.2d 220, 222 (Mich. Ct. App. 1988); Commercial Bank 
& Trust Co. v. Jordan, 278 P. 832, 834 (Mont. 1929); In re Interest of L.D., 
398 N.W.2d at 98; Johnson v. Jones, 2 Neb. 126, 135-137 (1872); Tehansky 

v. Wilson, 428 P.2d 375, 375 (Nev. 1967) (per curiam); Preparatory Temple 
& House of Prayer for all People, Inc. v. Seery, 195 A.2d 900, 902-903 (N.J. 
Super. Ct. Ch. Div. 1963); Miller v. Board of Assessors, 698 N.E.2d 906, 
908 (N.Y. 1997); People ex rel. New York City Omnibus Corp. v. Miller, 24 
N.E.2d 722, 723 (N.Y. 1939); Colonial Storage Mgmt. v. Board of Revision, 
679 N.E.2d 313, 314 (Ohio Ct. App. 1996); In re Estate of Sessions, 341 
P.2d at 516. 

6 Johnston Broad. Co. v. FCC, 175 F.2d 351, 355 (D.C. Cir. 1949) 
(“Generally speaking, it seems to be held in the state courts that a 
statutory requirement for a verified pleading is not jurisdictional but can 
be waived by the opposing party or cured by amendment.”); see also 
Ingalls Shipbuilding Corp. v. Cahela, 36 So. 2d 513, 518 (Ala. 1948); Smith 

v. Meyers, 253 P.2d 615, 617 (Ariz. 1953); United Farm Workers, 694 P.2d 
at 140; Lattimer v. Ryan, 20 Cal. 628, 633 (1862); Arrington v. Tupper, 10 
Cal. 464, 464-465 (1858); Board of Educ. v. Mulcahy, 123 P.2d 114, 118 
(Cal. Dist. Ct. App. 1942); State v. Beach, 103 A. 353, 353 (Del. Super. Ct. 
1918); Mellon Bank, N.A. v. Coppage, 253 S.E.2d 202, 203 (Ga. 1979); 
Decker v. West, 273 Ill. App. 532, 536-538 (1934); Workman, 46 N.E.2d at 
724; Crist v. Tallman, 179 N.W. 522, 524 (Iowa 1920); Rush, 46 Iowa at 
651; Pulliam v. Pulliam, 183 P.2d 220, 222 (Kan. 1947); Board of Comm’rs 

v. Walter, 112 P. 599, 600 (Kan. 1911); Vater v. Vater’s Adm’rs, 113 S.W.2d 
1145, 1146-1147 (Ky. 1938); City of Dayton v. Hirth, 87 S.W. 1136, 1137 
(Ky. 1905); Drury Displays, 760 S.W.2d at 114; Claussen v. Chapin, 221 P. 
1073, 1075 (Mont. 1924); Miller, 24 N.E.2d at 723-724; Kuykendall v. 
Lambert, 173 P. 657, 658 (Okla. 1918); Estate of Sessions, 341 P.2d at 517; 
Lewis v. Erie Ins. Exch., 421 A.2d 1214, 1217 (Pa. Super. Ct. 1980); State 
ex rel. Williams v. Jones, 164 S.W.2d 823, 826 (Tenn. 1942); Industrial 
State Bank v. Engineering Serv. & Equip., 612 S.W.2d 661, 663 (Tex. Civ. 

16 

later amendment and will relate back to the original 
unverified complaint.7 

Federal courts have likewise held that, where verification 
is required by statute or rule, it may be supplied by 
amendment and will relate back to the original, unverified 
pleading.8 For example, Section 18(c) of the Bankruptcy Act 
of 1898, ch. 541, 30 Stat. 551, required the vertification of all 
averments of fact in involuntary bankruptcy petitions. The 
federal courts uniformly held that failure to verify the facts 
in the petition was a non-jurisdictional, curable defect.9 This 

App. 1981); Keister’s Ex’rs v. Philips’ Ex’x, 98 S.E. 674, 675 (Va. 1919); 
Greene v. Union Pac. Stages, Inc., 45 P.2d 611, 612-613 (Wash. 1935). 

7 See Cahela, 36 So.2d at 518; United Farm Workers, 694 P.2d at 140; 
Easter Seal Society, 627 A.2d at 489; Graves v. Needham, 39 N.E.2d 321, 
322 (Ill. 1942); Maliszewski v. Human Rights Comm’n, 646 N.E.2d 625, 
626-628 (Ill. App. Ct. 1995); Mundinger, 528 N.E.2d at 836; Workman, 46 
N.E.2d at 724; Pulliam, 183 P.2d at 222; Hirth, 87 S.W. at 1137; Southside 
Civic Ass’n v. Warrington, 635 So.2d 721, 723-724 (La. Ct. App.), petition 
for writ denied, 639 So. 2d 1168 (La. 1994); Drury Displays, Inc., 760 
S.W.2d at 114; Chisholm, 64 P.2d at 842; In re Estate of Sessions, 341 P.2d 
at 517; State ex rel. Williams, 164 S.W.2d at 826; Greene, 45 P.2d at 612; 
see also Decker v. Board of Educ., 380 A.2d 285, 286-287 (N.J. Super. Ct. 
App. Div. 1977) (relying on agency regulations providing for relation back 
of verified complaints under New Jersey employment discrimination law), 
certification denied, 384 A.2d 842 (1978). 

8 See, e.g., United States v. United States Currency in the Amount of 
$103.387.27, 863 F.2d 555, 561-562, 563 n.13 (7th Cir. 1988); United States 

v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir. 1985); 
Johnston Broad. Co., 175 F.2d at 355-356; Lewis v. Connett, 291 F. Supp. 
583, 584 (W.D. Ark. 1968); Tracy v. Robbins, 40 F.R.D. 108, 111, 114 
(D.S.C. 1966), appeal dismissed, 373 F.2d 13 (4th Cir. 1967); Yuri Yajima 

v. United States, 6 F.R.D. 260, 262 (E.D.N.Y. 1946); Franzen v. E.I. du 
Pont de Nemours & Co., 36 F. Supp. 375, 378 (D.N.J. 1941); Duran v. 
United States, 31 Ct. Cl. 353, 358 (1896); Griffin v. United States, 13 Ct. Cl. 
257, 258-259 (1877). 

9 In re Royal Circle of Friends Bldg. Corp., 159 F.2d 539, 541 (7th Cir. 
1947); Harris v. Mills Novelty Co., 106 F.2d 976, 978 (10th Cir. 1939); 

17 

Court sustained that practice in Armstrong v. Fernandez, 
208 U.S. 324, 327 (1908), where it noted that the bankruptcy 
court had allowed verification of the petition nunc pro tunc 
and found no error in the district court’s action. 

This widespread practice demonstrates that, contrary to 
the court of appeals’ reading of Title VII, a statutory re- 
quirement that a charge must be verified does not mean that 
verification must occur within the statute of limitations 
period for filing a complaint, or that an unverified complaint 
is not a valid “charge” within the meaning of the statute. Of 
course, Congress could have departed from the common-law 
rule by imposing a specific time limit on verifications. But in 
the absence of such an express provision, there is no reason 
to think that Congress intended to depart from that widely 
recognized rule. 

10 

Adhering to the EEOC rule permitting verification after 
the filing date has passed is particularly appropriate in the 
context of Title VII. This Court has emphasized that Title 

Leidigh Carriage Co. v. Stengel, 95 F. 637, 641 (6th Cir. 1899); In re 
Robbins, 292 F. 653, 654 (S.D. Fla. 1923); In re Farthing, 202 F. 557, 566- 
567 (E.D.N.C. 1913); In re Bellah, 116 F. 69, 77 (D. Del. 1902); Green River 
Deposit Bank, 110 F. at 138. 

10 There is only very limited authority in the state courts to the 
contrary. In Griffith v. Adams, 52 A. 66, 68 (1902), the Maryland Court of 
Appeals stated that unverified complaints are “nullities, to which no legal 
effect could be given.” The court did not directly address the question 
whether amendment would be permissible, however, and the rule in 
question explicitly authorized courts to grant extensions of time to file the 
required verification “for good cause shown.” Ibid. Other cases similarly 
held only that unverified complaints may be disregarded, not that they 
must be. See 49 C.J. § 825 & n.53 (1930) (citing cases). In the special con- 
text of election contests, some courts have held that the verification 
requirement is jurisdictional, such that failure to file a verified petition 
within the relevant time period is an absolute bar. See Dinwiddie v. 
Board of County Comm’rs, 708 P.2d 1043, 1046 (N.M. 1985), cert. denied, 
476 U.S. 1117 (1986). 

18 

VII’s charge-filing requirements should be interpreted in 
light of the remedial purposes of the statute and the fact that 
its administrative processes are frequently invoked by 
laypersons without legal training or assistance. See Mo- 
hasco Corp. v. Silver, 447 U.S. 807, 818 (1980) (Title VII 
“was enacted to implement the congressional policy against 
discriminatory employment practices,” and “that basic policy 
must inform construction of this remedial legislation”); Zipes 

v. Trans World Airlines, Inc., 455 U.S. 385, 397 (1982) 
(cautioning against “technical reading” of charge-filing pro- 
visions because “laymen, unassisted by trained lawyers, 
initiate the process”); Love v. Pullman Co., 404 U.S. 522, 527 
(1972) (a highly technical reading of the charge-filing re- 
quirements is “particularly inappropriate in a statutory 
scheme [like Title VII] in which laymen, unassisted by 
trained lawyers, initiate the process”); see also EEOC v. 
Commercial Office Prods. Co., 486 U.S. 107, 123-124 (1988); 
cf. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761 (1979) 
(making similar observations with respect to Age Dis- 
crimination in Employment Act of 1967). 

C. The Commission’s Regulation Is Reasonable And 

Entitled To Deference 

1. The background principle of law in this area so clearly 
establishes that a verification may relate back to the initial 
complaint that the court of appeals’ contrary reading of Title 
VII should be rejected in light of the absence of any sug- 
gestion that Congress intended to depart from the tradi- 
tional rule. At a minimum, however, the court of appeals 
clearly erred in concluding that Title VII’s plain language 
compelled rejection of that well-established rule. Accord- 
ingly, to the extent the statutory language does not resolve 
the “precise question” at issue in this case, the Court should 
defer to the Commission’s regulation. See Chevron, 467 U.S. 

19 

at 842-843; see also Commercial Office Prods., 486 U.S. at 
115; Oscar Mayer & Co., 441 U.S. at 761. 

Deference to the Commission’s implementation of Title 
VII is particularly appropriate in this case for several 
reasons. First, Congress expressly delegated to EEOC the 
authority to “issue * * * suitable procedural regulations to 
carry out the provisions of ” Title VII. 42 U.S.C. 2000e-12(a). 
Congress has thus “explicitly left a gap for the agency to fill, 
[and] there is an express delegation of authority to the 
agency.” Chevron, 467 U.S. at 843-844. Moreover, the Com- 
mission formally published the regulation in the Code of 
Federal Regulations and the Federal Register, rather than 
informally articulating it in a policy statement or enforce- 
ment guideline. See 31 Fed. Reg. 10,269 (1966); 37 Fed. Reg. 
9215 (1972); 42 Fed. Reg. 55,388 (1977). Accordingly, the 
Commission’s procedural regulation is binding “unless pro- 
cedurally defective, arbitrary or capricious in substance, or 
manifestly contrary to the statute.” United States v. Mead 
Corp., 121 S. Ct. 2164, 2171 (2001); see also Commercial 
Office Prods., 486 U.S. at 125 (O’Connor, J., concurring) (de- 
ference to EEOC is “particularly appropriate” where regula- 
tion involves a “technical issue of agency procedure”). 

11 

11 Because this case involves an express delegation of authority to the 
Commission to issue regulations, there should be no dispute that Chevron 
deference is applicable. See Mead, 121 S. Ct. at 2172 (a “very good 
indicator of delegation meriting Chevron treatment” is “express con- 
gressional authorizations to engage in the process of rulemaking”). That is 
true even though the regulation at issue was not the product of notice- 
and-comment rulemaking. The Administrative Procedure Act does not 
require a notice of proposed rulemaking for “rules of agency organization, 
procedure, or practice.” 5 U.S.C. 553(b)(A). And unlike more informal 
interpretive rules and guidelines that have received only “some def- 
erence” (see Mead, 121 S. Ct. at 2175; Reno v. Koray, 515 U.S. 50, 61 
(1995)), this case involves a formal published regulation that is binding on 
the Commission. See also Mead, 121 S. Ct. at 2173 (making clear that 
want of notice and comment does not preclude Chevron deference). 

20 

Second, the regulation reflects the Commission’s long- 
standing and consistently-held interpretation of Title VII. 
Cf. EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 600 

n.17 (1981) (EEOC’s “contemporaneous construction” of 
Title VII procedural issue “deserves special deference when 
it has remained consistent over a long period of time”). The 
charge and relation-back provisions now found at 29 C.F.R. 
1601.12(b) were initially promulgated in 1966, just two years 
after Title VII became law. See 29 C.F.R. 1601.11 (1966); 31 
Fed. Reg. 10,269 (1966). The substance of the regulation has 
remained essentially unchanged, with only minor changes in 
citation and wording. Moreover, although Congress has 
enacted several sets of amendments to Title VII, including 
amendments to Section 706(b) in 1972, it has never dis- 
approved the regulation by adding a limitation requirement 
in Section 706(b) or a verification requirement in Section 
706(e). Cf. Associated Dry Goods, 449 U.S. at 600 n.17 (Con- 
gress’s failure to disapprove EEOC regulation “suggests its 
consent to the Commission’s practice”). 

12 

12 Moreover, before the 1972 amendments, courts of appeals had 
uniformly held, consistent with EEOC’s 1966 regulation, that charges 
could be verified outside the charge-filing period. See Blue Bell Boots, 
Inc. v. EEOC, 418 F.2d 355, 357 (6th Cir. 1969); Weeks v. Southern Bell 
Tel. & Tel. Co., 408 F.2d 228, 230-231 (5th Cir. 1969); Choate v. Caterpillar 
Tractor Co., 402 F.2d 357, 360 (7th Cir. 1968). By 1990, when Congress 
incorporated Title VII’s procedural requirements into the ADA (see p. 2, 
supra), all of the circuits that had addressed the issue had upheld EEOC’s 
regulation permitting a verification made outside the limitation period to 
relate back to a timely-filed but unverified charge. See Peterson v. City of 
Wichita, 888 F.2d 1307, 1309 (10th Cir. 1989), cert. denied, 495 U.S. 932 
(1990); Casavantes v. California State Univ., 732 F.2d 1441, 1443 (9th Cir. 
1984); Weeks, supra. The first court of appeals decision to the contrary 
was Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455, 458 (8th Cir. 1998); 
see also Hodges v. Northwest Airlines, Inc., 990 F.2d 1030 (8th Cir. 1993) 
(concluding that unverified charge was not timely filed with state agency). 

21 

2. The Commission’s regulation reflects a reasonable 
interpretation of Title VII. The regulation is not contrary to 
anything in the text of the statute and is consistent with 
well-established background legal principles. It is also fully 
consistent with the interests served by Title VII’s charge, 
verification, and limitation requirements. The main purpose 
of a charge is to put EEOC on notice that the respondent 
may have engaged in conduct that violates federal anti- 
discrimination law. Under Title VII and Title I of the ADA, 
EEOC (unlike other federal agencies with enforcement 

Some courts recently have questioned whether, in the 1972 amend- 
ments to Section 706(b), Congress intended to convert the verification 
provision from a technical and directory measure to one that is sub- 
stantive and mandatory. See Vason v. City of Montgomery, 240 F.3d 905, 
907 n.2 (11th Cir. 2001) (per curiam). Those courts, however, have mis- 
understood the thrust of the 1972 amendments. Congress rewrote Section 
706(b) in 1972 to permit charges to be filed “on behalf of” aggrieved 
persons as well as “by” aggrieved persons, and extended the verification 
requirement to all charges, including Commissioner’s charges and the new 
“on-behalf-of ” charges. The new, more complex provisions for filing 
charges required reorganization of the statutory language. Compare 42 
U.S.C. 2000e-5(a) (1970) (“Whenever it is charged in writing under oath by 
a person claiming to be aggrieved, or a written charge has been filed by a 
member of the Commission[,] * * * the Commission shall furnish 
[the respondent] * * * with a copy of such charge[.]”) with 42 U.S.C. 
2000e-5(b) (1994) (“Whenever a charge is filed by or on behalf of a person 
claiming to be aggrieved, or by a member of the Commission * * * , the 
Commission shall serve a notice of the charge * * * on [the respondent]. 
Charges shall be in writing under oath or affirmation[.]”). The scant 
legislative history of that amendment indicates that Congress understood 
the principal change to be that verification would be required in 
Commissioner’s charges and “on-behalf-of” charges; it does not suggest 
that Congress understood that, before the amendment, verification was 
not required in charges filed by individuals claiming discrimination. See 
118 Cong. Rec. 7167 (1972) (section-by-section analysis prepared by Sens. 
Williams and Javits). Moreover, nothing in the legislative history sug- 
gests that verification must occur within the charge-filing period. 

22 

powers) may investigate only matters that are tied to 
charges of discrimination that have been filed with the 
Commission. See EEOC v. Shell Oil Co., 466 U.S. 54, 64, 68 
(1984). That purpose is fulfilled if the charge is “sufficiently 
precise to identify the parties, and to describe generally the 
action or practices complained of,” with the minimum level of 
specificity required by 29 C.F.R. 1601.12(b). A charge need 
not also be verified to alert EEOC to potential discrimina- 
tion that may warrant investigation. 

The verification requirement serves to impress on com- 
plainants the gravity of filing a charge and to ensure that 
employers are not harassed by frivolous charges. Blue Bell 
Boots, Inc., 418 F.2d at 357; cf. Shell Oil, 466 U.S. at 76 n.32 
(explaining that, in Section 706(b), the “function of an oath is 
to impress upon its taker an awareness of his duty to tell the 
truth”). The employer’s interests are fully protected where, 
as here, the charge is verified before the employer is 
required to cooperate in the investigation. See Peterson v. 
City of Wichita, 888 F.2d 1307, 1309 (10th Cir. 1989), cert. 
denied, 495 U.S. 932 (1990); cf. Shell Oil, 466 U.S. at 64 
(charge that meets the requirements set forth in Section 
706(b) is prerequisite to judicial enforcement of an EEOC 
subpoena); see also 42 U.S.C. 2000e-5(b) (requiring service of 
notice of charge on employer within 10 days). 

Title VII’s limitation periods, “while guaranteeing the 
protection of the civil rights laws to those who promptly 
assert their rights,” are designed to “protect employers from 
the burden of defending claims arising from employment 
decisions that are long past.” Delaware State Coll. v. Ricks, 
449 U.S. 250, 256-257 (1980). The charge itself, even if un- 
verified, represents an assertion of the victim’s rights. A 
complainant who, in compliance with EEOC’s regulations, 
submits a detailed letter to the Commission within the appli- 
cable time period and explains the factual basis for his claim 
of discrimination cannot be said to have slept on his rights. 

23 

Furthermore, the deadlines imposed by the statute ensure 
that, even when the charge is formally verified after the 
limitation period has expired, employers will not need to 
defend decisions that are long past. In sum, the regulation 
“honor[s] the remedial purpose of the legislation as a whole 
without rejecting the particular purpose of the filing require- 
ment, to give prompt notice to the employer.” Zipes, 455 
U.S. at 398. 

3. The regulation also reflects the Commission’s practical 
experience with processing charges of discrimination. First, 
as this Court has recognized (pp. 17-18, supra), most in- 
dividuals who contact the EEOC to complain about alleged 
employment discrimination are laypersons acting without 
legal training or assistance. Those complainants are not 
likely to know, at least when they initially contact the Com- 
mission, that a complaint of discrimination must be verified 
by oath or affirmation to be treated as a formal charge of 
discrimination. 

Second, the limitation periods for filing an administrative 
charge of discrimination with EEOC are relatively short: 
180 days after the alleged unlawful employment practice, or 
300 days in States and localities with qualified employment- 
discrimination agencies (see note 1, supra). As there are 
only 50 EEOC district, area, and local offices in the United 
States, most complainants necessarily make initial contact 
with the Commission by letter or telephone. 

13 Complainants 
often send letters to the EEOC near the end of the limitation 
period, intending thereby to file charges of discrimination, 
without being aware that the charge must be verified. The 
regulation protects those persons if they have asserted their 

13 For example, the Seattle District Office handles charges from 
Alaska, Idaho, and Oregon as well as Washington; the Denver District 
Office covers not only Colorado but also Montana, Wyoming, Nebraska, 
North Dakota, and South Dakota. 

24 

rights in a timely fashion. It also preserves the 
Commission’s jurisdiction to investigate allegations of 
discrimination, which it could not do if the charge were 
deemed to be untimely. See Shell Oil, 466 U.S. at 64. 

14 

Third, because most complainants to EEOC are lay- 
persons, EEOC has long found it useful to have Commission 
staff prepare a short formal charge of discrimination (the 
Form 5) for the complainant to review and to execute under 
oath or affirmation, once the staff has distilled the essence of 
the allegations from contacts with the complainant. This 
practice simplifies EEOC’s enforcement of Title VII by fo- 
cusing the complainant’s allegation as well as the inquiry 
that EEOC then makes of the employer. The process of 
transferring the individual’s allegations to a Form 5 Charge 
of Discrimination ready for execution and verification often 
involves correspondence by mail between the Commission 
and the complainant. That process may take several weeks. 

Thus, practical considerations strongly support the Com- 
mission’s relation-back regulation. Even when a complain- 
ant sends the Commission a detailed written letter setting 
forth the basis for his allegation of discrimination well within 
the statutory limitation period, the complainant is unlikely to 
know of the verification requirement, and it will often be 

14 When an individual initially contacts EEOC by telephone, a member 
of the Commission staff may discuss the matter with the caller to make 
sure that the person’s complaint is not more appropriately directed to 
another agency (such as the Department of Labor or the National Labor 
Relations Board), and then typically sends that person an intake sheet or 
questionnaire to fill out in his own words and to return to the Commission. 
Once that intake sheet or questionnaire is returned to EEOC, a 
Commission staff person will then examine the case further, may schedule 
an interview with the complainant (in person or by telephone), and may 
eventually prepare a Form 5 Charge of Discrimination for the complainant 
to verify and execute. Under the EEOC regulation at issue here, a com- 
plainant’s telephone call may not be treated as a charge of discrimination; 
a charge must be in writing. See 29 C.F.R. 1601.12(b). 

25 

impossible for the Commission to prepare, and the complain- 
ant to verify, a Form 5 Charge of Discrimination before the 
short limitation period expires. If such an initial written (but 
unverified) submission to the Commission did not toll the 
statute of limitations for filing a charge, EEOC would likely 
lose the opportunity to investigate allegations of discrimi- 
nation in many cases, and individuals would lose the op- 
portunity to obtain relief as well. 

The Commission’s regulation also accommodates the fact 
that other federal, state, and local agencies also have juris- 
diction over employment-discrimination complaints. As 
noted above (note 1, supra), in deferral jurisdictions, the 
Commission must defer to the qualified state or local agency 
for 60 days before processing a charge unless the state or 
local proceedings conclude earlier. 42 U.S.C. 2000e-5(c). If a 
Title VII charge is filed initially with EEOC, the Com- 
mission may refer the charge to such a state or local agency 
for processing. See Commercial Office Prods., 486 U.S. 
at 110-112. Some States, including Virginia where this 
case originated, do not have a verification requirement for 
employment-discrimination complaints. See 22 Va. Admin. 
Code § 25-10-20 (1990) (defining “complaint” to mean “a writ- 
ten statement by a person * * * alleging an act of dis- 
crimination” prohibited by state law), § 25-10-50 (listing 
required contents of complaint but not including verifi- 
cation). The EEOC’s regulation permits it to refer unveri- 
fied charges to state and local agencies. See 29 C.F.R. 
1601.13(a)(4)(i). Those State and local agencies can then 
determine whether they may take action on an unverified 
charge under state or local law. The court of appeals’ deci- 
sion, however, might prevent EEOC from referring unveri- 
fied charges to state and local agencies, under the reasoning 
an unverified charge was not a “charge” at all within the 
meaning of Title VII, even if those state and local agencies 
do not require verification for their own purposes. 

26 

In addition, federal agencies, such as the Department of 
Labor, that administer other anti-discrimination provisions 
and other federal labor laws often receive charges that 
should be handled by EEOC. Those agencies typically for- 
ward such charges to the Commission. Many of the referred 
charges are unverified, in part because the anti-discrimi- 
nation provisions that those other federal agencies enforce 
do not require verification. See, e.g., 41 C.F.R. 60-1.23 (De- 
partment of Labor regulation governing complaints under 
anti-discrimination provisions of Executive Order No. 11,246 
does not require verification). Under the EEOC regulation, 
charges that are timely filed with another agency and are 
then referred to the Commission may be considered timely 
filed under Title VII, even if the transfer process is time- 
consuming and verification occurs outside the limitation 
period for filing charges with EEOC. That approach ensures 
that persons who seek relief for alleged employment dis- 
crimination do not mistakenly forfeit their rights. 

* * * * * 

In short, although Title VII provides a statute of limita- 
tions for filing charges and separately requires that a charge 
be verified, Title VII does not include a statute of limitations 
for verification. Nothing in the text or legislative history of 
the statute suggests that verification must occur within the 
limitation period for filing charges, and the background legal 
principle establishes the opposite presumption—that verifi- 
cation may occur outside the limitation period for filing a 
complaint and will relate back to a timely filed complaint. 
EEOC’s regulation is consistent with that background rule 
and furthers the purposes of the charge-filing, limitation, and 
verification provisions of Title VII. Accordingly, that regu- 
lation should be upheld. 

27 

CONCLUSION 

The judgment of the court of appeals should be reversed, 
and the case remanded for further proceedings. 

Respectfully submitted. 

NICHOLAS M. INZEO 

Acting Deputy General Counsel 

PHILIP B. SKLOVER 

Associate General Counsel 

VINCENT J. BLACKWOOD 

Assistant General Counsel 

BARBARA L. SLOAN 

Attorney 
Equal Employment 

Opportunity Commission 
THEODORE B. OLSON 
Solicitor General 

RALPH F. BOYD, JR. 

Assistant Attorney General 

PAUL D. CLEMENT 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 

AUGUST 2001