No. 00-1072 

In the Supreme Court of the United States 

LEONARD EDELMAN, PETITIONER 

v. 

LYNCHBURG COLLEGE 

ON PETITION FOR A 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 

GWENDOLYN YOUNG REAMS 
Associate General Counsel 

PHILLIP B. SKLOVER 

Associate General Counsel 

VINCENT J. BLACKWOOD 

Assistant General Counsel 

BARBARA L. SLOAN 

Attorney 
Equal Employment 

Opportunity Commission 
Washington, D.C. 20507 
BARBARA D. UNDERWOOD 
Acting Solicitor General 

Counsel of Record 

WILLIAM R. YEOMANS 

Acting 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 

QUESTIONS PRESENTED 

A regulation of the Equal Employment Opportunity 
Commission (EEOC), 29 C.F.R. 1601.12(b), imple- 
menting Title VII of the Civil Rights Act of 1964 pro- 
vides that a charge of employment discrimination filed 
with EEOC may be amended to cure “technical defects 
or omissions, including failure to verify the charge,” and 
that such an amendment to verify the charge “will re- 
late 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, as long as the charge of discrimina- 
tion was first received by EEOC during that statutory 
limitation period. The questions presented are whether 
29 C.F.R. 1601.12(b) is valid, and if not, whether peti- 
tioner permissibly relied on that regulation so as to 
warrant the application of equitable tolling of the 
limitation period on the facts of this case. 

(I) 

TABLE OF CONTENTS 

Page 

Statement ........................................................................................ 1 

Discussion ........................................................................................ 8 

Conclusion ....................................................................................... 21 

TABLE OF AUTHORITIES 

Cases: 

Becker v. Montgomery, No. 00-6374 (May 29, 

2001) ......................................................................................... 13 

Blue Bell Boots v. EEOC, 418 F.2d 335 (6th Cir. 

1969) ................................................................................. 

15-16, 18 

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

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

18 

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

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

5, 12 

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

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

15 

Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 

(1983) ........................................................................................ 16 

Delaware State Coll. v. Ricks, 449 U.S. 250 (1980) .......... 

16 

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

590 (1981) ................................................................................. 

14 

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

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

3, 13-14, 17 

EEOC v. Sears, Roebuck & Co., 650 F.2d 14 

(2d Cir. 1981) .......................................................................... 

18 

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

10, 16 

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

17 

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

17 

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

(1979) ........................................................................................ 17 

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

Cir. 1989), cert. denied, 495 U.S. 932 (1990) ..................... 18 

(III) 

IV 

Cases—Continued: Page 

Philbin v. General Elec. Capital Auto Lease, Inc., 

929 F.2d 321 (7th Cir. 1991) ................................................. 

18 

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

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

18 

Shempert v. Harwick Chem. Corp., 151 F.3d 793 

(8th Cir. 1998), cert. denied, 525 U.S. 1139 (1999) ........... 

18 

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

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

3 

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

(11th Cir. 2001) ....................................................................... 

15 

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

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

15, 18 

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

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

Statutes, regulations and rules: 

Americans with Disabilities Act of 1990, 42 U.S.C. 

12101 et seq.: 

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

19 

42 U.S.C. 12117(a) ............................................................. 

10 

42 U.S.C. 12117(b) ............................................................. 

11 

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

passim 

42 U.S.C. 2000e-2(a)(1) ......................................................... 

2 

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

12, 13, 14, 15 

42 U.S.C. 2000e-5(b) .................................... 

4, 5, 9, 12, 13, 14, 15 

42 U.S.C. 2000e-5(e) .............................................................. 

12, 14 

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

3, 5 

42 U.S.C. 2000e-12(a) ............................................................ 

13 

Equal Employment Opportunity Act of 1972, Pub. L. 

No. 92-261, § 4, 86 Stat. 104 ................................................. 

14 

Exec. Order No. 11,246, 3 C.F.R. 167 (1965 Supp.) ............ 

12 

29 C.F.R.: 

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

14 

Section 1601.12(b) ............................................. 

3, 5, 9, 11, 14, 16 

Section 1601.13(a)(3) ............................................................. 

3 

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

V 

Regulations and rules—Continued: 
Page 

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

3 

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

3 

Fed. R. App. P. 4(a)(1) ............................................................. 

13 

Fed. R. Civ. P. 11(a) ................................................................. 

13 

Sup. Ct. R. 10(a) ........................................................................ 

18 

Miscellaneous: 

118 Cong. Rec. 7166 (1972) ...................................................... 

15 

8 FEPM 403:3005 (1999) .......................................................... 
11 

31 Fed. Reg. 10,269 (1966) ....................................................... 14 

In the Supreme Court of the United States 

No. 00-1072 

LEONARD EDELMAN, PETITIONER 

v. 

LYNCHBURG COLLEGE 

ON PETITION FOR A 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 

This brief is submitted 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 member of the faculty. 
Pet. App. 2a. On November 14, 1997 (160 days later), 
petitioner sent a detailed letter to the Equal Employ- 
ment Opportunity Commission (EEOC or Commission), 
alleging that respondent denied him tenure because of 
his sex and that respondent’s dean was systematically 
purging white men from the faculty. C.A. App. 61-65. 
Petitioner ended the letter by stating, “I hereby file a 
charge of employment discrimination against Lynch- 
burg College * * * and I call upon the EEOC to 

(1) 

2 

investigate this case in an attempt to rectify this unjust 
and unfair situation before any more people are sub- 
jected to this illegal discrimination.” Id. at 64-65. The 
letter was signed by petitioner but was not executed 
under oath or affirmation. Id. at 65. 

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 inter- 
view will not compromise the filing date, which will re- 
main as November 14, 1997. Please advise if my 
understanding in this regard is not correct.” Ibid. 

On December 3, 1997, an EEOC employee sent peti- 
tioner a form letter, without acknowledging the letter 
from his attorney. That form letter stated that peti- 
tioner should telephone EEOC to arrange an interview. 
Petitioner’s interview 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 peti- 
tioner’s review and verified signature. EEOC received 
the verified charge from petitioner on April 15, 1998, 
313 days after the last alleged discriminatory employ- 
ment 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 subsequently added a count alleging sex 
discrimination in violation of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1). Respon- 
dent removed the action to federal district court and 
then moved to dismiss the Title VII claim on the 

3 

ground that petitioner had failed to file a valid charge 
of discrimination with EEOC within the applicable 
statutory limitation period. Respondent argued that 
petitioner did not file a charge of discrimination 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 charge of discrimination 
with EEOC. 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 submission of a 
verified charge form related back to that date. Al- 
though respondent acknowledged that regulation, it 
argued, inter alia, that the regulation conflicted with 
the underlying statute. See Br. in Opp. 5 n.1. 

1 The basic limitation period for filing a charge of discrimina- 
tion in violation of Title VII with EEOC is 180 days after the un- 
lawful employment practice. 42 U.S.C. 2000e-5(e)(1). However, if 
the complainant has filed a discrimination charge with a state or 
local government agency that has legal authority to “grant or seek 
relief” from the alleged unlawful employment practice, 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, EEOC will “defer” the 
discrimination charge to the appropriate state or local agency, 
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) 
and (4), 1601.13(c); Tinsley, 155 F.3d at 439. Virginia has such a 
deferral agency, the Virginia Council on Human Rights. See 29 
C.F.R. 1601.74(a); Tinsley, 155 F.3d at 440. 

4 

The district court agreed with respondent that peti- 
tioner had failed to file a timely charge of discrimina- 
tion, dismissed petitioner’s Title VII claim, and re- 
manded the remainder of the case to state court. Pet. 
App. 16a-17a. Although the district court noted 
that petitioner initially wrote to EEOC to complain 
about employment discrimination by respondent on 
November 14, 1997, and that his attorney also wrote to 
EEOC 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, com- 
mence proceedings.” Id. at 22a-23a. The district court 
observed that, although Title VII provides that EEOC 
shall serve notice of a charge of discrimination on the 
employer within ten days of the filing of the charge, see 
42 U.S.C. 2000e-5(b), EEOC did not serve notice of a 
discrimination charge on respondent within ten days 
of either of the November 1997 letters, petitioner’s 
counsel requested that notice of the charge of dis- 
crimination not be served on respondent until after 
petitioner’s interview with EEOC staff, EEOC did not 
assign a charge number to petitioner’s case until after 
petitioner submitted his verified charge form in April 
1998, and EEOC did not refer either of the November 
1997 letters to the Virginia Commission on Human 
Rights. Pet. App. 22a; see p. 3 note 1, supra. The 
district court also ruled that petitioner was not entitled 
to equitable tolling of the 300-day limitation period in 
this case because, among other reasons, he received the 
charge of discrimination prepared by EEOC within the 
300-day limitation period and could have returned the 
verified charge in a timely fashion so as to preserve his 
rights. Id. at 23a. 

5 

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

a. The majority rejected petitioner’s contention 
that, under the EEOC regulation, 29 C.F.R. 1601.12(b), 
petitioner’s initial, non-verified letter complaining 
about discrimination complied with the 300-day limita- 
tion period and his subsequent verification of his charge 
of discrimination related back to the date of that initial 
complaint. The majority did not take issue with peti- 
tioner’s submission that his initial, non-verified letter to 
EEOC was actually treated by the Commission as a 
charge of discrimination. It concluded, however, that 
EEOC’s regulation permitting the verification of the 
charge to relate back to the filing of the initial charge is 
contrary to the statute and therefore 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). See 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 “Congress has 
unambiguously spoken” on that question. Id. at 6a. 
The court noted that 42 U.S.C. 2000e-5(b) specifically 
requires 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 
meaning of this language,” stated the court, “compels 
the conclusion that if a discrimination claim is not in 
writing, under oath or affirmation, * * * it is not a 
charge.” Pet. App. 6a. In addition, it stated that 42 
U.S.C. 2000e-5(e)(1) “affirmatively and plainly estab- 
lishes the time period within which a charge must 

6 

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). Based on 
that conclusion, the court also rejected petitioner’s 
argument that EEOC’s regulation is entitled to de- 
ference: “[T]o the extent that the regulation permits a 
charge to be verified after the expiration of the limita- 
tions period, it thwarts the plain language of Title VII 

* * * [and] contravenes Congress’s intent, as ex- 
pressed through the plain language of the statute.” 
Ibid. 

The majority acknowledged that its holding conflicts 
with decisions of four other circuits that have held that 
a verified charge of discrimination filed outside the 
statutory limitation period may relate back to an un- 
verified charge of discrimination filed within that 
period. See Pet. App. 9a-11a (citing cases). The court 
nonetheless disagreed with those decisions on the 
ground that they “improperly substitute policy justifi- 
cations for clear statutory language.” Id. at 11a. 

Finally, the majority rejected petitioner’s argument 
that the limitation period should be equitably tolled in 
this case. Pet. App. 12a. The court ruled that the facts 
of this case did not warrant equitable tolling because 
petitioner had been represented by counsel at all stages 
of the administrative process, and because petitioner 
waited a few months after the alleged discrimination 
before contacting the Commission. The majority also 
noted, as had the district court, that EEOC mailed the 
draft charge to him before the expiration of the limita- 
tion period, and that petitioner could have signed and 
returned the draft within that period. Ibid. 

7 

b. Judge Luttig concurred only in the judgment of 
the court. Pet. App. 14a-15a. He would have affirmed 
the dismissal of petitioner’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 EEOC 
to be treated as a charge of discrimination. Id. at 14a. 
Judge Luttig stated that he was “sufficiently uncom- 
fortable” with the broader ground relied on by the 
majority—namely, that “verification may never relate 
back” after expiration of the limitation period—that he 
was unable to concur in that ruling. Ibid. 

Judge Luttig 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 
discriminatory action.’ ” Pet. App. 14a. Rather, he ob- 
served, “we are presented with two statutes, the first 
providing that a charge shall be filed within [300] days 
of the unlawful employment practice, and the second 
providing that charges 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 majority’s reading. 
Ibid. “[I]f the two statutes are so read as temporally 
independent of each other, or at least not temporally 
coterminous, then there is no statutory requirement 
that the charge be verified within the [300] days, and 
relation back would be available by regulation.” Ibid. 

Finally, Judge Luttig observed, “there is no statu- 
tory 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 
discrimination; it need not be verified.” Id. at 15a. 

8 

Because he did not find EEOC’s construction of Title 
VII on which the regulation is based to be contradicted 
by anything in the statute itself, he would have de- 
ferred to that administrative interpretation. Ibid. 

DISCUSSION 

The EEOC regulation at issue in this case permits 
the Commission to take action on a charge of dis- 
crimination under Title VII as long as the charge is 
submitted in writing to the Commission within the 
statutory limitation period and that charge is verified 
by the complainant, even though the charge is not 
verified during the limitation period. The regulation 
allows a later verification to relate back to the original 
filing date of the unverified charge. That regulation is 
of considerable importance to EEOC’s enforcement of 
Title VII, because the great majority of discrimination 
complaints are submitted by individuals who are un- 
likely to know at the time of submission that the charge 
must be verified. The importance of that regulation, in 
practical terms, to EEOC’s enforcement responsibilities 
counsels in favor of this Court’s review. 

The court of appeals’ decision, moreover, is errone- 
ous. While Title VII does provide that a charge of dis- 
crimination must be filed with EEOC within the 
statutory limitation period and also provides that a 
charge must be verified before EEOC may require the 
respondent to participate in its investigation, the 
statute does not require that the charge be verified 
during the statutory limitation period. The court of 
appeals’ decision also conflicts with the decisions of 
several other circuits. The Court should therefore 
grant review to resolve this important issue concerning 

9 

the administration of federal employment-discrimina- 
tion law.2 

1. The regulation at issue in this case provides in 
pertinent part: 

[A] charge is sufficient when the Commission re- 
ceives 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 allega- 
tions made therein. Such amendments * * * will 
relate back to the date the charge was first received. 

29 C.F.R. 1601.12(b). This regulation takes account of 
two significant realities in Title VII enforcement. 
First, the vast majority of individuals who contact 
EEOC to complain about alleged employment discrimi- 
nation are laypersons acting without legal assistance. 
Those complainants are not likely to know, at least 
when they initially contact the Commission, that a 
complaint of discrimination must be verified by oath or 
affirmation. Second, the limitation periods for filing an 
administrative charge of discrimination with EEOC are 
unusually short: 180 days after the alleged unlawful 
employment practice, or 300 days in States and 
localities with their own employment-discrimination 
agencies authorized to grant or seek relief. 42 U.S.C. 
2000e-5(b); see p. 3 note 1, supra. 

2 The court of appeals’ further ruling, rejecting equitable toll- 
ing on the particular facts of this case, does not appear to raise any 
broad issues of federal law concerning the standards governing 
equitable tolling or to conflict with the decision of any other court 
of appeals. We therefore recommend that the Court grant review 
only on the first question presented. 

10 

Thus, complainants may send letters to 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 at issue 
here ensures that such persons will not unwittingly 
forfeit their rights to pursue remedies for unlawful 
discrimination. It also authorizes EEOC to investigate 
their allegations of discrimination, which the Commis- 
sion could not do if the unverified charge were viewed 
as not timely filed.3 

In addition, EEOC’s practice has long been to have 
Commission staff prepare a short formal charge of dis- 
crimination (the Form 5) for the complainant to review 
and to execute under oath or affirmation, once the staff 
has distilled the essence of the allegation from contacts 
with the complainant. See, e.g., C.A. App. 51. This 
practice simplifies EEOC’s enforcement of Title VII 
by clarifying and focusing the complainant’s allegation 
as well as the inquiry that EEOC then makes of the 
employer. That process also takes time, however.4 

3 Under Title VII and the Americans with Disabilities Act of 
1990 (ADA), EEOC may investigate only matters that are tied to 
charges of discrimination that have been filed with the Com- 
mission. See EEOC v. Shell Oil Co., 466 U.S. 54, 64 (1984) (Title 

VII); 42 U.S.C. 12117(a) (same enforcement provisions made appli- 
cable to ADA). 

4 That is particularly true in the great majority of instances in 
which individuals complaining of discrimination initially contact 
EEOC by mail or telephone. When an individual initially contacts 
EEOC by telephone, a member of the Commission staff may dis- 
cuss the matter with the caller to make sure that the person’s com- 
plaint 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 Com- 
mission. Once that intake sheet or questionnaire is returned to 

11 

Because complainants often do not live near an EEOC 
office, the process of transferring the individual’s 
allegations to a Form 5 Charge of Discrimination ready 
for execution and verification usually involves corre- 
spondence by mail between the Commission and the 
complainant. The process of preparing a verified 
charge of discrimination may take several weeks. 

Thus, even when a complainant sends the Com- 
mission a detailed written letter setting forth the basis 
for his allegation of discrimination well within the 
statutory limitation period, it will often be impracti- 
cable for the Commission to prepare, and the com- 
plainant to verify, a Form 5 Charge of Discrimination 
before the short limitation period has elapsed. If such 
an initial written (but unverified) submission to the 
Commission were not treated as a timely filing of a 
charge, EEOC would likely lose the opportunity to 
investigate allegations of discrimination in many cases, 
and individuals would lose the opportunity to obtain 
relief as well.5 

EEOC, a Commission staff person will then examine the case 
further, may schedule an interview with the complainant (in per- 
son 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 complainant’s tele- 
phone call may not be treated as a charge of discrimination; a 
charge must be in writing. See 29 C.F.R. 1601.12(b). 

5 In addition, the Commission has entered into memoranda of 
understanding (MOUs) with several other federal agencies, pur- 
suant to which complaints of discrimination filed initially with 
those other agencies are referred to EEOC for investigation as 
though they had been filed under Title VII or the ADA. See, e.g., 8 
FEPM 403:3005 (1999) (EEOC’s MOU with Department of Labor’s 
Office of Federal Contract Compliance Programs); see also 42 
U.S.C. 12117(b) (requiring agencies to avoid duplication of effort in 
investigating ADA complaints, and requiring coordinating 

12 

2. The court of appeals erred in invalidating the 
EEOC regulation. Contrary to the court’s decision, the 
regulation is not inconsistent with any provision of Title 
VII, and it constitutes a reasonable exercise of EEOC’s 
authority under Title VII to fashion procedural rules 
for the investigation of administrative complaints of 
discrimination. The court therefore should have upheld 
the regulation under Chevron U.S.A. Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837, 842-843 
(1984). 

Section 706 of Title VII, 42 U.S.C. 2000e-5, sets forth 
various provisions governing EEOC’s enforcement 
authority. Section 2000e-5(b), addressing EEOC’s ad- 
ministrative treatment of charges of discrimination, 
states 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.” Section 2000e- 
5(e), governing the time for filing charges with EEOC, 
separately provides that a charge “shall be filed” 
within 180 days after the alleged unlawful employment 
practice, or, in States such as Virginia with “deferral” 
agencies (see p. 3 note 1, supra), within 300 days. Thus, 
under Title VII, a charge of discrimination must be 
verified under oath or affirmation by the complainant, 
and the charge must be timely filed. 

mechanisms such as MOUs). The regulations governing com- 
plaints under anti-discrimination provisions, such as Executive 
Order No. 11,246 (3 C.F.R. 167 (1965 Supp.)), that are enforced by 
those other agencies do not require verification as a prerequisite to 
proper filing of a charge of discrimination. The court of appeals’ 
decision, if allowed to stand, would impair EEOC’s ability to 
investigate discrimination complaints that are submitted to other 
agencies in a timely fashion and are promptly referred to EEOC 
by those other agencies but are not verified by the complainant 
within the statutory limitation period. 

13 

As Judge Luttig observed (Pet. App. 14a), however, 
neither Section 2000e-5 nor any other provision of Title 
VII requires that the charge be verified within the 
limitation period for filing charges. As long as the 
charge is timely filed with EEOC, Title VII does not 
preclude a complainant from subsequently rectifying 
formal errors in the charge, including the lack of verifi- 
cation, after the expiration of the limitation period. Nor 
does anything in Title VII require EEOC to disregard a 
written, detailed complaint of employment discrimina- 
tion as a nullity before it has been verified by the 
complainant, even if it has been submitted to EEOC 
within the limitation period. Cf. Becker v. Montgomery, 
No. 00-6374 (May 29, 2001), slip op. 4-5 (although 
Federal Rule of Appellate Procedure 4(a)(1) requires 
notice of appeal to be timely filed in district court, and 
Federal Rule of Civil Procedure 11(a) separately re- 
quires every paper filed in district court to be signed, 
neither Rule provides “that the signature requirement 
cannot be met after the appeal period expires”). 

In other words, the governing statute does not speak 
directly to the matter at hand. Accordingly, EEOC’s 
regulation should be upheld if it represents a reason- 
able exercise of EEOC’s statutory authority over the 
procedural requirements for the proper filing and treat- 
ment of administrative charges. See 42 U.S.C. 2000e- 
12(a) (authorizing EEOC “to issue, amend, or rescind 
suitable procedural regulations to carry out the pro- 
visions of [Title VII]”); 42 U.S.C. 2000e-5(b) (charges 
“shall contain such information and be in such form as 
the Commission requires”); see also EEOC v. Com- 
mercial Office Prods. Co., 486 U.S. 107, 115 (1988) 
(“EEOC’s interpretation of Title VII, for which it has 
primary enforcement responsibility, * * * need only 
be reasonable to be entitled to deference.”); id. at 125 

14 

(O’Connor, J., concurring in part and concurring in the 
judgment) (deference is “particularly appropriate” 
when regulation involves a “technical issue of agency 
procedure”). 

Deference is particularly appropriate here because 
EEOC adopted the regulation shortly after the passage 
of Title VII and has retained it ever since. See EEOC 

v. Associated Dry Goods Corp., 449 U.S. 590, 600 n.17 
(1981) (EEOC’s “contemporaneous construction” of 
Title VII “deserves special deference when it has 
remained consistent over a long period of time”). The 
relation-back provision now found at 29 C.F.R. 
1601.12(b) was initially promulgated in 1966, just two 
years after Title VII was enacted. See 31 Fed. Reg. 
10,269. Despite minor changes in the citation and 
wording, the substance has remained essentially the 
same.6 Moreover, although Congress has amended 
Title VII several times, including amendments to 
Section 2000e-5 in 1972 (see Pub. L. No. 92-261, § 4, 86 
Stat. 104), it has not overridden the regulation by 
adding a limitation period to the verification require- 
ment in Section 2000e-5(b) or a verification requirement 
to the limitation period in Section 2000e-5(e). Cf. 
Associated Dry Goods, 449 U.S. at 600 n.17 (Congress’s 
failure to disapprove EEOC regulation “suggests its 
consent to the Commission’s practice.”).7 

6 Compare 29 C.F.R. 1601.12(b) (2000) (“A charge may be 
amended to cure technical defects or omissions, including failure 
to verify the charge * * * . Such amendments * * * will relate 
back to the date the charge was first received.”) with 29 C.F.R. 
1601.11(b) (1966) (“A charge may be amended to cure technical 
defects or omissions, including failure to swear to the charge * * * 
and such amendments relate back to the original filing date.”). 

7 Congress was presumably aware that, before 1972, courts of 
appeals had uniformly held, consistent with EEOC’s 1966 regu- 

15 

The regulation reflects EEOC’s long-standing under- 
standing that, while Title VII does require that a 
charge be verified by the complainant before EEOC 
may take action against the respondent, it does not re- 
quire that the charge be verified before the expiration 
of the statutory limitation period. Accordingly, under 
the regulation, a complainant’s verification of the 
charge may relate back to a charge that was filed 
during the proper period. That regulation is reasonable 
and consistent with the purposes of both the verifi- 
cation requirement and the statute of limitations. The 
verification requirement is intended to prevent harass- 
ment of employers with frivolous charges by im- 
pressing on complainants the gravity of filing a charge 
of discrimination and the obligation to tell the truth in 
doing so. See Blue Bell Boots v. EEOC, 418 F.2d 355, 

lation, that a verification of a charge outside the charge-filing 
period could relate back to the initial filing of the charge, if that 
initial filing was timely. See Blue Bell Boots 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). 

Some courts have 

questioned whether, in the 1972 amendments, which modestly 
changed the language of Section 2000e-5, Congress intended to 
convert the verification provision from a “directory and technical” 
provision to one that is “mandatory and substantive.” See Vason 

v. City of Montgomery, 240 F.3d 905, 907 n.2 (11th Cir. 2001). The 
scant legislative history of that amendment, however, suggests 
that Congress assumed that even pre-1972 law required charges 
by aggrieved persons to be in writing under oath at some point. 
The 1972 amendment to Section 2000e-5(b) permitted charges also 
to be filed “on behalf of” aggrieved persons, and extended the 
verification requirement to all charges, including Commissioner’s 
charges and the new “on-behalf-of” charges. See Section-by- 
Section Analysis of H.R. 1746, 118 Cong. Rec. 7166 (1972). The 
amended provision, however, did not require that verification 
occur within the charge-filing period. 

16 

357 (6th Cir. 1969); see also EEOC v. Shell Oil Co., 466 
U.S. 54, 76 n.32 (1984) (the “function of an oath is to 
impress upon its taker an awareness of his duty to tell 
the truth”). That purpose is satisfied as long as the 
charge is sworn to or affirmed before the employer 
must cooperate in the investigation. Under EEOC 
practice, the complainant must submit a verified charge 
before EEOC will require a response from the em- 
ployer, and that procedure was followed in this case. 
See C.A. App. 52.8 

On the other hand, “[t]he limitations periods [of Title 

VII], while guaranteeing the protection of the civil 
rights laws to those who promptly assert their rights, 
also 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); see also Crown, Cork & Seal Co. v. Parker, 
462 U.S. 345, 352 (1983). A complainant who, in com- 
pliance with an EEOC regulation, submits within the 
applicable time period a detailed letter to EEOC that 
explains the factual basis for his claim of discrimination 
and identifies the alleged responsible parties cannot be 
said to have slept on his rights. The short deadlines 
imposed by Title VII also ensure that, even when the 
charge is formally verified and EEOC’s contacts with 
the employer are initiated after the limitation period 
has expired, there is little danger that employers will 
find themselves obligated to defend against decisions 

8 EEOC’s regulation is also consistent with the statute’s re- 
quirement that a formal charge be filed with the Commission. The 
purpose of such a charge is to inform the Commission that the 
respondent may have violated Title VII. See Shell Oil, 466 U.S. at 

68. That purpose is fulfilled if the charge is “sufficiently precise to 
identify the parties, and to describe generally the action or prac- 
tices complained of,” as required by 29 C.F.R. 1601.12(b). 

17 

that are “long past.” As this case demonstrates, when a 
complainant submits a written but unverified charge of 
discrimination to the Commission, EEOC contacts the 
complainant to obtain further information about the 
charge in a personal interview and may eventually 
prepare a charge form for the complainant to sign and 
verify. See C.A. App. 51, 88. EEOC’s practice is to 
warn complainants that, unless they follow up on the 
initial unverified letter charging discrimination by 
scheduling an interview within 30 days, EEOC will 
assume the complainant did not intend to file a charge 
and will not proceed further. Id. at 88. Combined with 
Title VII’s short limitation periods, that practice 
minimizes the risk that an employer will be surprised 
with a charge of discrimination years after the alleged 
unlawful employment practice.9 

The EEOC regulation is also consistent with this 
Court’s decisions recognizing that Title VII complaints 
are usually filed with the Commission by laypersons 
without the assistance of trained lawyers, and so the 
statute’s charge-filing requirements should not be con- 
strued in a highly technical manner that would impede 
discrimination charges from being filed by complainants 
and investigated by the Commission. See Commercial 
Office Prods., 486 U.S. at 123-124; Zipes v. Trans World 
Airlines, Inc. 455 U.S. 385, 397-398 (1982); Mohasco 
Corp. v. Silver, 447 U.S. 807, 816 n.19 (1980); Love v. 
Pullman Co., 404 U.S. 522, 527 (1972); see also Oscar 
Mayer & Co. v. Evans, 441 U.S. 750, 761 (1979) (Age 
Discrimination in Employment Act of 1967). Those 
observations are particularly appropriate with regard 

9 In this case, for example, EEOC notified respondent of peti- 
tioner’s charge of discrimination on April 21, 1998, well within a 
year of the alleged violation of Title VII. See C.A. App. 52. 

18 

to Title VII’s requirement that a charge be verified, a 
requirement of which the vast majority of complainants 
would likely be unaware before contacting the Com- 
mission. 

3. The decision of the court of appeals also warrants 
review because the circuits have reached conflicting 
views about the validity of the EEOC regulation at 
issue here. The Eighth Circuit, like the Fourth, has 
concluded that a charge must be verified as well as filed 
within the limitation period and has therefore in- 
validated the EEOC regulation. 

10 The other courts of 
appeals that have considered the matter have held, 
consistent with EEOC’s regulation, that verification 
may occur outside the charge-filing period and may 
relate back to a timely-filed but unverified charge. 

11 

That conflict in the circuits is particularly deserving 
of this Court’s review, even beyond the traditional con- 
siderations governing certiorari (see Sup. Ct. R. 10(a)), 
because several EEOC district offices serve individuals 
in more than one of the circuits, including circuits with 
conflicting rulings on the EEOC regulation at issue 

10 See Shempert v. Harwick Chem. Corp., 151 F.3d 793, 796-797 
(8th Cir. 1998), cert. denied, 525 U.S. 1139 (1999); Schlueter v. 
Anheuser-Busch, Inc., 132 F.3d 455, 458 (8th Cir. 1998). 

11 See Philbin v. General Elec. Capital Auto Lease, Inc., 929 
F.2d 321, 323-324 (7th Cir. 1991); 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); Blue Bell Boots, 418 F.2d at 357 (Sixth Circuit); Weeks v. 
Southern Bell Tel. & Tel. Co., 408 F.2d 228, 230-231 (5th Cir. 1969); 
see also EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 18-19 (2d Cir. 
1981) (upholding validity of Commissioner’s charge verified by 
Commissioner after term had expired). 

19 

12 EEOC offices processing charges from States 
within the Fourth and Eighth Circuits must now 
attempt to ensure that charging parties in those States 
verify their charges within the charge-filing period, 
despite EEOC’s contrary regulation and field guidance, 
and despite the fact that charging parties from other 
States who file charges in the same district offices are 
entitled to the benefit of EEOC’s relation-back regu- 
lation. Nor is the uncertainty limited to the enforce- 
ment of Title VII itself. Because the Americans with 
Disabilities Act of 1990 (ADA) incorporates by refer- 
ence Title VII’s procedural provisions (see 42 U.S.C. 
12117), the uncertainty carries over to charges of dis- 
crimination under the ADA filed with EEOC. This 
Court’s resolution of the conflict is needed to ensure 
uniform treatment of charges of discrimination that are 
filed with EEOC during the statutory limitation period 
but are not verified until after that period has expired. 

4. Respondent does not dispute that there is a 
conflict in the circuits on the validity of the EEOC 
regulation. Respondent argues rather that this case 
does not present an appropriate occasion for this Court 
to consider that issue because, it maintains, petitioner’s 

12 EEOC’s Milwaukee District Office encompasses parts of the 
Seventh and Eighth Circuits; the Denver Office includes parts of 
the Eighth and Tenth Circuits; the St. Louis Office covers parts of 
the Eighth, Seventh, and Tenth Circuits; and the Memphis District 
Office spans parts of the Sixth and Eighth Circuits. Those offices 
serve areas in circuits with directly conflicting decisions. In 
addition, other EEOC offices serve areas within one circuit that 
has invalidated the regulation and one or more circuits that have 
not ruled on the matter but where the regulation is still in force. 
The Philadelphia District Office covers parts of the Third and 
Fourth Circuits, and the Baltimore District Office covers a part of 
the Fourth Circuit and the D.C. Circuit. 

here. 

20 

initial November 14, 1997, letter was not intended to 
be a charge of discrimination and was not treated by 
EEOC as a charge. See Br. in Opp. 4-9; but see C.A. 
App. 80-81, 90-91 (declarations submitted to district 
court by EEOC employees to the effect that they 
treated petitioner’s initial letter as a charge). Re- 
spondent points out (Br. in Opp. 4-5) that both the 
district court and Judge Luttig would have resolved 
this case on that narrower ground without reaching the 
validity of the regulation. 

Nonetheless, the panel majority addressed the 
validity of the EEOC relation-back regulation, invali- 
dated that regulation, and resolved the case on that 
basis, and not on the alternate ground suggested by 
Judge Luttig. The panel’s holding that the EEOC 
regulation is invalid, and that under no circumstances 
may the verification of a charge of discrimination relate 
back to the initial timely filing of an unverified charge, 
is binding precedent in the Fourth Circuit. The Com- 
mission is obligated to follow that precedent in cases 
arising from that circuit, even though (as noted above, 
see p. 19 and note 12, supra) the Commission’s offices in 
Baltimore and Philadelphia cover both the Fourth Cir- 
cuit and another circuit where its relation-back regu- 
lation is still applicable. Should this Court reverse the 
court of appeals’ decision and hold that that regulation 
is valid, respondent will be able to present on remand 
its alternate argument that the regulation was not 
satisfied in this case because petitioner’s November 14, 
1997, letter was not a charge of discrimination. 

CONCLUSION 

The petition for a writ of certiorari should be granted 
as to the first question presented. 

21 

Respectfully submitted. 

GWENDOLYN YOUNG REAMS 
Associate General Counsel 

PHILLIP B. SKLOVER 

Associate General Counsel 

VINCENT J. BLACKWOOD 

Assistant General Counsel 

BARBARA L. SLOAN 

Attorney 
Equal Employment 

Opportunity Commission 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

WILLIAM R. YEOMANS 

Acting Assistant Attorney 

General 

PAUL D. CLEMENT 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 

JUNE 2001