FEDERAL EXPRESS CORP. v. HOLOWECKI et al.

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389 OCTOBER TERM, 2007
Syllabus
FEDERAL EXPRESS CORP. v. HOLOWECKI et al.
certiorari to the united states court of appeals for
the second circuit
No. 06–1322. Argued November 6, 2007—Decided February 27, 2008
The Age Discrimination in Employment Act of 1967 (ADEA) requires that
“[n]o civil action . . . be commenced . . . until 60 days after a charge
alleging unlawful discrimination has been filed with the Equal Em
ployment Opportunity Commission” (EEOC), 29 U. S. C. § 626(d), but
does not define the term “charge.” After petitioner delivery service
(FedEx) initiated programs tying its couriers’ compensation and con
tinued employment to certain performance benchmarks, respondent
Kennedy (hereinafter respondent), a FedEx courier over age 40, filed
with the EEOC, in December 2001, a Form 283 “Intake Questionnaire”
and a detailed affidavit supporting her contention that the FedEx pro
grams discriminated against older couriers in violation of the ADEA.
In April 2002, respondent and others filed this ADEA suit claiming,
inter alia, that the programs were veiled attempts to force out, harass,
and discriminate against older couriers. FedEx moved to dismiss re
spondent’s action, contending she had not filed the “charge” required by
§ 626(d). Respondent countered that her Form 283 and affidavit consti
tuted a valid charge, but the District Court disagreed and granted Fed
Ex’s motion. The Second Circuit reversed.
Held:
1. In addition to the information required by the implementing regu
lations, i. e., an allegation of age discrimination and the name of the
charged party, if a filing is to be deemed a “charge” under the ADEA it
must be reasonably construed as a request for the agency to take reme
dial action to protect the employee’s rights or otherwise settle a dispute
between the employer and the employee. Pp. 395–404.
(a) There is little dispute that the EEOC’s regulations—so far as
they go—are reasonable constructions of the statutory term “charge”
and are therefore entitled to deference under Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 843–845. How
ever, while the regulations give some content to the term charge, they
fall short of a comprehensive definition. Thus, the issue is the guidance
the regulations give. Title 29 CFR § 1626.3 says: “charge shall mean a
statement filed with the [EEOC] which alleges that the named prospec
tive defendant has engaged in or is about to engage in actions in viola
tion of the Act.” Section 1626.8(a) identifies information a “charge

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should contain,” including: the employee’s and employer’s names, ad
dresses, and phone numbers; an allegation that the employee was the
victim of age discrimination; the number of employees of the charged
employer; and a statement indicating whether the charging party has
initiated state proceedings. Section 1626.8(b), however, seems to qual
ify these requirements by stating that a charge is “sufficient” if it meets
the requirements of § 1626.6—i. e., if it is “in writing and . . . name[s]
the prospective respondent and . . . generally allege[s] the discrimina
tory act(s).” That the meaning of charge remains unclear, even with
the regulations, is evidenced by the differing positions of the parties
and the Courts of Appeals on the matter. Pp. 395–396.
(b) Just as this Court defers to reasonable statutory interpreta
tions, an agency is entitled to deference when it adopts a reasonable
interpretation of its regulations, unless its position is “ ‘plainly errone
ous or inconsistent with the regulation,’ ” Auer v. Robbins, 519 U. S.
452, 461. The Court accords such deference to the EEOC’s position
that its regulations identify certain requirements for a charge but do not
provide an exhaustive definition. It follows that a document meeting
§ 1626.6’s requirements is not a charge in every instance. The language
in §§ 1626.6 and 1626.8 cannot be viewed in isolation from the rest of
the regulations. While the regulations’ structure is less than clear, the
relevant provisions are grouped under the title, “Procedures—Age Dis
crimination in Employment Act.” A permissible reading is that the
regulations identify the procedures for filing a charge but do not state
the full contents of a charge. Pp. 396–397.
(c) That does not resolve this case because the regulations do not
state what additional elements are required in a charge. The EEOC
submits, in accordance with a position it has adopted in internal di
rectives over the years, that the proper test is whether a filing, taken
as a whole, should be construed as a request by the employee for the
EEOC to take whatever action is necessary to vindicate her rights.
Pp. 398–399.
(d) The EEOC acted within its authority in formulating its
request-to-act requirement. The agency’s policy statements, embodied
in its compliance manual and internal directives, interpret not only its
regulations but also the statute itself. Assuming these interpretive
statements are not entitled to full Chevron deference, they nevertheless
are entitled to a “measure of respect” under the less deferential stand
ard of Skidmore v. Swift & Co., 323 U. S. 134, see Alaska Dept. of Envi
ronmental Conservation v. EPA, 540 U. S. 461, 487, whereby the Court
considers whether the agency has consistently applied its position, e. g.,
United States v. Mead Corp., 533 U. S. 218, 228. Here, the relevant
interpretive statement has been binding on EEOC staff for at least five
years. True, the agency’s implementation has been uneven; e. g., its

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field office did not treat respondent’s filing as a charge, and, as a result,
she filed suit before the EEOC could initiate conciliation with FedEx.
Such undoubted deficiencies are not enough, however, to deprive an
agency that processes over 175,000 inquiries a year of all judicial defer
ence. Moreover, the charge must be defined in a way that allows the
agency to fulfill its distinct statutory functions of enforcing antidiscrimi
nation laws, see 29 U. S. C. § 626(d), and disseminating information about
those laws to the public, see, e. g., Civil Rights Act of 1964, §§ 705(i),
705(g)(3). Pp. 399–403.
(e) FedEx’s view that because the EEOC must act “[u]pon re
ceiving . . . a charge,” 29 U. S. C. § 626(d), its failure to do so means the
filing is not a charge, is rejected as too artificial a reading of the ADEA.
The statute requires the aggrieved individual to file a charge before
filing a lawsuit; it does not condition the individual’s right to sue upon
the agency taking any action. Cf. Edelman v. Lynchburg College, 535
U. S. 106, 112–113. Moreover, because the filing of a charge determines
when the ADEA’s time limits and procedural mechanisms commence, it
would be illogical and impractical to make the definition of charge de
pendent upon a condition subsequent over which the parties have no
control. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 444.
Pp. 403–404.
2. The agency’s determination that respondent’s December 2001 filing
was a charge is a reasonable exercise of its authority to apply its own
regulations and procedures in the course of the routine administration
of the statute it enforces. Pp. 404–407.
(a) Respondent’s completed Form 283 contained all the information
outlined in 29 CFR § 1626.8, and, although the form did not itself request
agency action, the accompanying affidavit asked the EEOC to “force
[FedEx] to end [its] age discrimination plan.” FedEx contends unper
suasively that, in context, the latter statement is ambiguous because
the affidavit also stated: “I have been . . . assur[ed] by [the EEOC] that
this Affidavit will be considered confidential . . . and will not be
disclosed . . . unless it becomes necessary . . . to produce the affidavit in
a formal proceeding.” This argument reads too much into the nondis
closure assurances. Respondent did not request the EEOC to avoid
contacting FedEx, but stated only her understanding that the affidavit
itself would be kept confidential and, even then, consented to disclosure
of the affidavit in a “formal proceeding.” Furthermore, respondent
checked a box on the Form 283 giving consent for the EEOC to disclose
her identity to FedEx. The fact that respondent filed a formal charge
with the EEOC after she filed her District Court complaint is irrelevant
because postfiling conduct does not nullify an earlier, proper charge.
Pp. 404–406.

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(b) Because the EEOC failed to treat respondent’s filing as a charge
in the first instance, both sides lost the benefits of the ADEA’s informal
dispute resolution process. The court that hears the merits can at
tempt to remedy this deficiency by staying the proceedings to allow
an opportunity for conciliation and settlement. While that remedy is
imperfect, it is unavoidable in this case. However, the ultimate respon
sibility for establishing a clearer, more consistent process lies with the
EEOC, which should determine, in the first instance, what revisions
to its forms and processes are necessary or appropriate to reduce the
risk of future misunderstandings by those who seek its assistance.
Pp. 406–407.
440 F. 3d 558, affirmed.
Kennedy, J., delivered the opinion of the Court, in which Roberts,
C. J., and Stevens, Souter, Ginsburg, Breyer, and Alito, JJ., joined.
Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, post,
p. 408.
Connie Lewis Lensing argued the cause for petitioner.
With her on the briefs were R. Jeffery Kelsey, Edward J.
Efkeman, Robert K. Spotswood, Walter E. Dellinger, Pam
ela Harris, and Jonathan Hacker.
David L. Rose argued the cause for respondents. With
him on the brief was Joshua N. Rose.
Toby J. Heytens argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief
were Acting Solicitor General Garre, Acting Assistant At
torney General Comisac, Dennis J. Dimsey, Lisa J. Stark,
Ronald S. Cooper, and Anne Noel Occhialino.*
Justice Kennedy delivered the opinion of the Court.
This case arises under the Age Discrimination in Employ
ment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended,
*Briefs of amici curiae urging reversal were filed for the Chamber of
Commerce of the United States of America by Lawrence Z. Lorber, James
F. Segroves, Robin S. Conrad, and Shane Brennan; and for the Equal
Employment Advisory Council et al. by Rae T. Vann, Laura Anne Giant
ris, and Karen R. Harned.
Paul W. Mollica filed a brief for AARP et al. as amici curiae urging
affirmance.

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29 U. S. C. § 621 et seq. When an employee files “a charge
alleging unlawful [age] discrimination” with the Equal Em
ployment Opportunity Commission (EEOC), the charge sets
the Act’s enforcement mechanisms in motion, commencing a
waiting period during which the employee cannot file suit.
The phrase, “a charge alleging unlawful discrimination,” is
used in the statute, § 626(d), and “charge” appears in the
agency’s implementing regulations; but it has no statutory
definition. In deciding what constitutes a charge under the
Act the Courts of Appeals have adopted different definitions.
As a result, difficulties have arisen in determining when em
ployees may seek relief under the ADEA in courts of compe
tent jurisdiction.
As a cautionary preface, we note that the EEOC enforce
ment mechanisms and statutory waiting periods for ADEA
claims differ in some respects from those pertaining to other
statutes the EEOC enforces, such as Title VII of the Civil
Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C.
§ 2000e et seq., and the Americans with Disabilities Act of
1990, 104 Stat. 327, as amended, 42 U. S. C. § 12101 et seq.
While there may be areas of common definition, employees
and their counsel must be careful not to apply rules applica
ble under one statute to a different statute without careful
and critical examination. Cf. General Dynamics Land Sys
tems, Inc. v. Cline, 540 U. S. 581, 586–587 (2004). This is so
even if the EEOC forms and the same definition of charge
apply in more than one type of discrimination case.
I
Petitioner, Federal Express Corporation (FedEx), pro
vides mail pickup and delivery services to customers world
wide. In 1994 and 1995, FedEx initiated two programs, de
signed, it says, to make its 45,000-strong courier network
more productive. The programs, “Best Practice Pays”
(BPP) and “Minimum Acceptable Performance Standards”

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(MAPS), tied the couriers’ compensation and continued em
ployment to certain performance benchmarks, for instance
the number of stops a courier makes per day.
Respondents are 14 current and former FedEx couriers
over the age of 40. They filed suit in the United States
District Court for the Southern District of New York on
April 30, 2002, claiming, inter alia, that BPP and MAPS vio
late the ADEA. Asserting that their claims were typical of
many couriers nationwide, respondents sought to represent
a plaintiffs’ class of all couriers over the age of 40 who were
subject to alleged acts of age discrimination by FedEx. The
suit maintains that BPP and MAPS were veiled attempts to
force older workers out of the company before they would be
entitled to receive retirement benefits. FedEx, it is alleged,
used the initiatives as a pretext for harassing and discrimi
nating against older couriers in favor of younger ones.
The immediate question before us is the timeliness of the
suit filed by one of the plaintiffs below, Patricia Kennedy,
referred to here as “respondent.” Petitioner moved to dis
miss respondent’s action, contending respondent had not filed
her charge with the EEOC at least 60 days before filing suit,
as required by 29 U. S. C. § 626(d). Respondent countered
that she filed a valid charge on December 11, 2001, by sub
mitting EEOC Form 283.
The agency labels Form 283 an “Intake Questionnaire.”
Respondent attached to the questionnaire a signed affidavit
describing the alleged discriminatory employment practices
in greater detail. The District Court determined these doc
uments were not a charge and granted the motion to dismiss.
No. 02 Civ. 3355(LMM) (SDNY, Oct. 9, 2002), App. to Pet. for
Cert. 39a. An appeal followed, and the Court of Appeals for
the Second Circuit reversed. See 440 F. 3d 558, 570 (2006).
We granted certiorari to consider whether respondent’s filing
was a charge, 551 U. S. 1102 (2007), and we now affirm.

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II
This case presents two distinct questions: What is a charge
as the ADEA uses that term? And were the documents re
spondent filed in December 2001 a charge?
A
The relevant statutory provision states:
“No civil action may be commenced by an individual
under [the ADEA] until 60 days after a charge alleging
unlawful discrimination has been filed with the Equal
Employment Opportunity Commission. . . .
. . . . .
“Upon receiving such a charge, the Commission shall
promptly notify all persons named in such charge as pro
spective defendants in the action and shall promptly
seek to eliminate any alleged unlawful practice by infor
mal methods of conciliation, conference, and persuasion.”
29 U. S. C. § 626(d).
The Act does not define charge. While EEOC regulations
give some content to the term, they fall short of a compre
hensive definition. The agency has statutory authority to
issue regulations, see § 628; and when an agency invokes its
authority to issue regulations, which then interpret ambigu
ous statutory terms, the courts defer to its reasonable inter
pretations. See Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837, 843–845 (1984). The
regulations the agency has adopted—so far as they go—are
reasonable constructions of the term charge. There is little
dispute about this. The issue is the guidance the regula
tions give.
One of the regulations, 29 CFR § 1626.3 (2007), is entitled
“Other definitions.” It says: “charge shall mean a statement
filed with the Commission by or on behalf of an aggrieved
person which alleges that the named prospective defendant

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has engaged in or is about to engage in actions in violation
of the Act.” Section 1626.8(a) identifies five pieces of infor
mation a “charge should contain”: (1)–(2) the names, ad
dresses, and telephone numbers of the person making the
charge and the charged entity; (3) a statement of facts de
scribing the alleged discriminatory act; (4) the number of
employees of the charged employer; and (5) a statement indi
cating whether the charging party has initiated state pro
ceedings. The next subsection, § 1626.8(b), however, seems
to qualify these requirements by stating that a charge is
“sufficient” if it meets the requirements of § 1626.6—i. e., if
it is “in writing and . . . name[s] the prospective respondent
and . . . generally allege[s] the discriminatory act(s).”
Even with the aid of the regulations the meaning of charge
remains unclear, as is evident from the differing positions
of the parties now before us and in the Courts of Appeals.
Petitioner contends an Intake Questionnaire cannot be a
charge unless the EEOC acts upon it. On the other hand
some Courts of Appeals, including the Court of Appeals for
the Second Circuit, take a position similar to the Govern
ment’s in this case, that an Intake Questionnaire can con
stitute a charge if it expresses the filer’s intent to activate
the EEOC’s enforcement processes. See, e. g., Steffen v.
Meridian Life Ins. Co., 859 F. 2d 534, 542 (CA7 1988). A
third view, which seems to accord with respondent’s position,
is that all completed Intake Questionnaires are charges.
See, e. g., Casavantes v. California State Univ., Sacramento,
732 F. 2d 1441, 1443 (CA9 1984).
B
In support of her position that the Intake Questionnaire
she filed, taken together with the attached six-page affidavit,
meets the regulatory definition of a charge, respondent
places considerable emphasis on what might be described
as the regulations’ catchall or saving provision, 29 CFR
§ 1626.8(b). This seems to require only a written document

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with a general allegation of discriminatory conduct by a
named employer. Respondent points out that, when read
together, §§ 1626.8(b) and 1626.6 say that a “charge is suffi
cient when the Commission receives . . . a written statement”
that “name[s] the [employer] and . . . generally allege[s] the
discriminatory act(s).” Respondent views this language as
unequivocal and sees no basis for requiring that a charge
contain any additional information.
The EEOC’s view, as expressed in the Government’s ami
cus brief, however, is that the regulations identify certain
requirements for a charge but do not provide an exhaustive
definition. As such, not all documents that meet the mini
mal requirements of § 1626.6 are charges.
The question, then, becomes how to interpret the scope of
the regulations. Just as we defer to an agency’s reasonable
interpretations of the statute when it issues regulations in
the first instance, see Chevron, supra, the agency is entitled
to further deference when it adopts a reasonable interpreta
tion of regulations it has put in force. See Auer v. Robbins,
519 U. S. 452 (1997). Under Auer, we accept the agency’s
position unless it is “ ‘ “plainly erroneous or inconsistent with
the regulation.” ’ ” Id., at 461 (quoting Robertson v. Methow
Valley Citizens Council, 490 U. S. 332, 359 (1989)).
In accord with this standard we accept the agency’s posi
tion that the regulations do not identify all necessary compo
nents of a charge; and it follows that a document meeting the
requirements of § 1626.6 is not a charge in every instance.
The language in §§ 1626.6 and 1626.8 cannot be viewed in
isolation from the rest of the regulations. True, the struc
ture of the regulations is less than clear. But the relevant
provisions are grouped under the title, “Procedures—Age
Discrimination in Employment Act.” A permissible reading
is that the regulations identify the procedures for filing a
charge but do not state the full contents a charge document
must contain. This is the agency’s position, and we defer to
it under Auer.

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C
This does not resolve the case. While we agree with the
Government that the regulations do not state all the ele
ments a charge must contain, the question of what additional
elements are required remains. On this point the regula
tions are silent.
The EEOC submits that the proper test for determining
whether a filing is a charge is whether the filing, taken as a
whole, should be construed as a request by the employee for
the agency to take whatever action is necessary to vindicate
her rights. Brief for United States as Amicus Curiae 15.
The EEOC has adopted this position in the Government’s
amicus brief and in various internal directives it has issued
to its field offices over the years. See 1 EEOC Compliance
Manual § 2.2(b), p. 2:0001 (Aug. 2002); Memorandum from
Elizabeth M. Thornton, Director, Office of Field Programs,
EEOC, to All District, Area, and Local Office Directors et al.
(Feb. 21, 2002), online at http://www.eeoc.gov/charge/memo
2-21-02.html (hereinafter Thornton Memo) (all Internet ma
terials as visited Feb. 21, 2008, and available in Clerk of
Court’s case file); Memorandum from Nicholas M. Inzeo, Di
rector, Office of Field Programs, EEOC, to All District,
Field, Area, and Local Office Directors et al. (Aug. 13, 2007),
online at http://www.eeoc.gov/charge/memo-8-13-07.html.
The Government asserts that this request-to-act require
ment is a reasonable extrapolation of the agency’s regula
tions and that, as a result, the agency’s position is dispositive
under Auer.
The Government acknowledges the regulations do not, on
their face, speak to the filer’s intent. To the extent the
request-to-act requirement can be derived from the text of
the regulations, it must spring from the term charge. But,
in this context, the term charge is not a construct of the
agency’s regulations. It is a term Congress used in the un
derlying statute that has been incorporated in the regula
tions by the agency. Thus, insofar as they speak to the fil

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er’s intent, the regulations do so by repeating language from
the underlying statute. It could be argued, then, that this
case can be distinguished from Auer. See Gonzales v. Ore
gon, 546 U. S. 243, 257 (2006) (the “near equivalence of the
statute and regulation belies [the case for] Auer deference”);
Christensen v. Harris County, 529 U. S. 576, 588 (2000) (an
agency cannot “under the guise of interpreting a regula
tion . . . create de facto a new regulation”).
It is not necessary to hold that Auer deference applies to
the agency’s construction of the term charge as it is used
in the regulations, however. For even if Auer deference is
inapplicable, we would accept the agency’s proposed con
struction of the statutory term, and we turn next to the rea
sons for this conclusion.
D
In our view the agency’s policy statements, embodied in
its compliance manual and internal directives, interpret not
only the regulations but also the statute itself. Assuming
these interpretive statements are not entitled to full Chev
ron deference, they do reflect “ ‘a body of experience and
informed judgment to which courts and litigants may prop
erly resort for guidance.’ ” Bragdon v. Abbott, 524 U. S. 624,
642 (1998) (quoting Skidmore v. Swift & Co., 323 U. S. 134,
139–140 (1944)). As such, they are entitled to a “measure
of respect” under the less deferential Skidmore standard.
Alaska Dept. of Environmental Conservation v. EPA, 540
U. S. 461, 487, 488 (2004); United States v. Mead Corp., 533
U. S. 218, 227–239 (2001).
Under Skidmore, we consider whether the agency has ap
plied its position with consistency. Mead Corp., supra, at
228; Good Samaritan Hospital v. Shalala, 508 U. S. 402, 417
(1993). Here, the relevant interpretive statement, embodied
in the compliance manual and memoranda, has been binding
on EEOC staff for at least five years. See Thornton Memo,
supra. True, as the Government concedes, the agency’s im
plementation of this policy has been uneven. See Brief for

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United States as Amicus Curiae 25. In the very case be
fore us the EEOC’s Tampa field office did not treat respond
ent’s filing as a charge, as the Government now maintains it
should have done. And, as a result, respondent filed suit
before the agency could initiate a conciliation process with
the employer.
These undoubted deficiencies in the agency’s administra
tion of the statute and its regulatory scheme are not enough,
however, to deprive the agency of all judicial deference.
Some degree of inconsistent treatment is unavoidable when
the agency processes over 175,000 inquiries a year. Id., at
19, n. 10. And although one of the policy memoranda the
Government relies upon was circulated after we granted cer
tiorari, the position the document takes is consistent with
the EEOC’s previous directives. We see no reason to as
sume the agency’s position—that a charge is filed when the
employee requests some action—was framed for the specific
purpose of aiding a party in this litigation. Cf. Bowen v.
Georgetown Univ. Hospital, 488 U. S. 204, 212–213 (1988).
The EEOC, moreover, has drawn our attention to the need
to define charge in a way that allows the agency to fulfill its
distinct statutory functions of enforcing antidiscrimination
laws and disseminating information about those laws to the
public. Cf. Barnhart v. Walton, 535 U. S. 212, 225 (2002)
(noting that deference is appropriate in “matters of detail
related to [an agency’s] administration” of a statute). The
agency’s duty to initiate informal dispute resolution proc
esses upon receipt of a charge is mandatory in the ADEA
context. See 29 U. S. C. § 626(d) (“[T]he Commission . . .
shall promptly seek to eliminate any alleged unlawful prac
tice by informal methods of conciliation, conference, and per
suasion”); Cf. Lopez v. Davis, 531 U. S. 230, 241 (2001) (noting
that Congress’ use of the term “ ‘shall’ ” indicates an intent to
“impose discretionless obligations”). Yet, at the same time,
Congress intended the agency to serve an “educational”
function. See Civil Rights Act of 1964, § 705(i), 78 Stat. 259;

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id., § 705(g)(3) (noting that the Commission shall have the
power to “furnish to persons subject to this title such techni
cal assistance as they may request”). Providing answers to
the public’s questions is a critical part of the EEOC’s mis
sion; and it accounts for a substantial part of the agency’s
work. Of about 175,000 inquiries the agency receives each
year, it dockets around 76,000 of these as charges. Brief for
United States as Amicus Curiae 19, n. 10. Even allowing
for errors in the classification of charges and noncharges, it
is evident that many filings come from individuals who have
questions about their rights and simply want information.
For efficient operations, and to effect congressional intent,
the agency requires some mechanism to separate information
requests from enforcement requests. Respondent’s pro
posed standard, that a charge need contain only an allegation
of discrimination and the name of the employer, falls short in
this regard. Were that stripped-down standard to prevail,
individuals who approach the agency with questions could
end up divulging enough information to create a charge.
This likely would be the case for anyone who completes an
Intake Questionnaire—which provides space to indicate the
name and address of the offending employer and asks the
individual to answer the question, “What action was taken
against you that you believe to be discrimination?” App. to
Pet. for Cert. 43a. If an individual knows that reporting
this minimal information to the agency will mandate the
agency to notify her employer, she may be discouraged from
consulting the agency or wait until her employment situation
has become so untenable that conciliation efforts would be
futile. The result would be contrary to Congress’ expressed
desire that the EEOC act as an information provider and try
to settle employment disputes through informal means.
For these reasons, the definition of charge respondent ad
vocates—i. e., that it need conform only to 29 CFR § 1626.6—
is in considerable tension with the structure and purposes
of the ADEA. The agency’s interpretive position—the

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request-to-act requirement—provides a reasonable alterna
tive that is consistent with the statutory framework. No
clearer alternatives are within our authority or expertise to
adopt; and so deference to the agency is appropriate under
Skidmore. We conclude as follows: In addition to the infor
mation required by the regulations, i. e., an allegation and
the name of the charged party, if a filing is to be deemed a
charge it must be reasonably construed as a request for the
agency to take remedial action to protect the employee’s
rights or otherwise settle a dispute between the employer
and the employee.
Some Courts of Appeals have referred to a “ ‘manifest in
tent’ ” test, under which, in order to be deemed a charge, the
filing must demonstrate “an individual’s intent to have the
agency initiate its investigatory and conciliatory processes.”
440 F. 3d, at 566 (case below); see also Wilkerson v. Grinnell
Corp., 270 F. 3d 1314, 1319 (CA11 2001); Steffen, 859 F. 2d,
at 543; Bihler v. Singer Co., 710 F. 2d 96, 99 (CA3 1983). If
this formulation suggests the filer’s state of mind is somehow
determinative, it misses the point. If, however, it means the
filing must be examined from the standpoint of an objective
observer to determine whether, by a reasonable construction
of its terms, the filer requests the agency to activate its ma
chinery and remedial processes, that would be in accord with
our conclusion.
It is true that under this permissive standard a wide range
of documents might be classified as charges. But this result
is consistent with the design and purpose of the ADEA.
Even in the formal litigation context, pro se litigants are held
to a lesser pleading standard than other parties. See Es
telle v. Gamble, 429 U. S. 97, 106 (1976) (Pro se pleadings are
to be “liberally construed”). In the administrative context
now before us it appears pro se filings may be the rule, not
the exception. The ADEA, like Title VII, sets up a “reme
dial scheme in which laypersons, rather than lawyers, are
expected to initiate the process.” EEOC v. Commercial Of

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403 Cite as: 552 U. S. 389 (2008)
Opinion of the Court
fice Products Co., 486 U. S. 107, 124 (1988); see also Oscar
Mayer & Co. v. Evans, 441 U. S. 750, 756 (1979) (noting the
“common purpose” of Title VII and the ADEA). The sys
tem must be accessible to individuals who have no detailed
knowledge of the relevant statutory mechanisms and agency
processes. It thus is consistent with the purposes of the Act
that a charge can be a form, easy to complete, or an informal
document, easy to draft. The agency’s proposed test imple
ments these purposes.
Reasonable arguments can be made that the agency should
adopt a standard giving more guidance to filers, making it
clear that the request to act must be stated in quite explicit
terms. A rule of that sort might yield more consistent re
sults. This, however, is a matter for the agency to decide in
light of its experience and expertise in protecting the rights
of those who are covered by the Act. For its decisions in
this regard the agency is subject to the oversight of the polit
ical branches. Cf. National Cable & Telecommunications
Assn. v. Brand X Internet Services, 545 U. S. 967, 980 (2005)
(“Filling these gaps [in ambiguous statutes] involves difficult
policy choices that agencies are better equipped to make than
courts”). We find no reason in this case to depart from our
usual rule: Where ambiguities in statutory analysis and ap
plication are presented, the agency may choose among rea
sonable alternatives.
E
Asserting its interest as an employer, petitioner urges us
to condition the definition of charge, and hence an employee’s
ability to sue, upon the EEOC’s fulfilling its mandatory duty
to notify the charged party and initiate a conciliation process.
In petitioner’s view, because the Commission must act
“[u]pon receiving such a charge,” 29 U. S. C. § 626(d), its fail
ure to do so means the filing is not a charge.
The agency rejects this view, as do we. As a textual mat
ter, the proposal is too artificial a reading of the statute to
accept. The statute requires the aggrieved individual to file

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404 FEDERAL EXPRESS CORP. v. HOLOWECKI
Opinion of the Court
a charge before filing a lawsuit; it does not condition the indi
vidual’s right to sue upon the agency taking any action.
Ibid. (“No civil action may be commenced by an individual
under [the ADEA] until 60 days after a charge alleging un
lawful discrimination has been filed with the Equal Employ
ment Opportunity Commission”); Cf. Edelman v. Lynchburg
College, 535 U. S. 106, 112–113 (2002) (rejecting the argu
ment that a charge is not a charge until the filer satisfies
Title VII’s oath or affirmation requirement). The filing of a
charge, moreover, determines when the Act’s time limits and
procedural mechanisms commence. It would be illogical and
impractical to make the definition of charge dependent upon
a condition subsequent over which the parties have no con
trol. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 444
(1982) (Powell, J., concurring in judgment).
III
Having determined that the agency acted within its au
thority in formulating the rule that a filing is deemed a
charge if the document reasonably can be construed to re
quest agency action and appropriate relief on the employee’s
behalf, the question is whether the filing here meets this
test. The agency says it does, and we agree. The agency’s
determination is a reasonable exercise of its authority to
apply its own regulations and procedures in the course of the
routine administration of the statute it enforces.
Respondent’s completed intake form contained all of the
information outlined in 29 CFR § 1626.8, including: the em
ployee’s name, address, and telephone number, as well as
those of her employer; an allegation that she and other em
ployees had been the victims of “age discrimination”; the
number of employees who worked at the Dunedin, Florida,
facility where she was stationed; and a statement indicating
she had not sought the assistance of any government agency
regarding this matter. See App. 265.

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Opinion of the Court
Petitioner maintains the filing was still deficient because it
contained no request for the agency to act. Were the Intake
Questionnaire the only document before us we might agree
its handwritten statements do not request action. The de
sign of the form in use in 2001, moreover, does not give rise
to the inference that the employee requests action against
the employer. Unlike EEOC Form 5, the Intake Question
naire is not labeled a “Charge of Discrimination,” see id., at
275. In fact the wording of the questionnaire suggests the
opposite: that the form’s purpose is to facilitate “pre-charge
filing counseling” and to enable the agency to determine
whether it has jurisdiction over “potential charges.” Id., at
265. There might be instances where the indicated discrimi
nation is so clear or pervasive that the agency could infer
from the allegations themselves that action is requested and
required, but the agency is not required to treat every com
pleted Intake Questionnaire as a charge.
In this case, however, the completed questionnaire filed in
December 2001 was supplemented with a detailed six-page
affidavit. At the end of the last page, respondent asked the
agency to “[p]lease force Federal Express to end their age
discrimination plan so we can finish out our careers absent
the unfairness and hostile work environment created within
their application of Best Practice/High-Velocity Culture
Change.” Id., at 273. This is properly construed as a re
quest for the agency to act.
Petitioner says that, in context, the statement is ambigu
ous. It points to respondent’s accompanying statement that
“I have been given assurances by an Agent of the U. S. Equal
Employment Opportunity Commission that this Affidavit
will be considered confidential by the United States Govern
ment and will not be disclosed as long as the case remains
open unless it becomes necessary for the Government to
produce the affidavit in a formal proceeding.” Id., at 266.
Petitioner argues that if respondent intended the affidavit to

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406 FEDERAL EXPRESS CORP. v. HOLOWECKI
Opinion of the Court
be kept confidential, she could not have expected the agency
to treat it as a charge. This reads too much into the as
surance of nondisclosure. Respondent did not request the
agency to avoid contacting her employer. She stated only
her understanding that the affidavit itself would be kept con
fidential. Even then, she gave consent for the agency to dis
close the affidavit in a “formal proceeding.” Furthermore,
respondent checked a box on the Intake Questionnaire giving
consent for the agency to disclose her identity to the em
ployer. Id., at 265. Here the combination of the waiver and
respondent’s request in the affidavit that the agency “force”
the employer to stop discriminating against her were enough
to bring the entire filing within the definition of charge we
adopt here.
Petitioner notes that respondent did file a Form 5 (a formal
charge) with the EEOC but only after she filed her complaint
in the District Court. This shows, petitioner argues, that
respondent did not intend the earlier December 2001 filing
to be a charge; otherwise, there would have been no reason
for the later filing. What matters, however, is whether the
documents filed in December 2001 should be interpreted as
a request for the agency to act. Postfiling conduct does not
nullify an earlier, proper charge.
Documents filed by an employee with the EEOC should be
construed, to the extent consistent with permissible rules of
interpretation, to protect the employee’s rights and statu
tory remedies. Construing ambiguities against the drafter
may be the more efficient rule to encourage precise expres
sion in other contexts; here, however, the rule would un
dermine the remedial scheme Congress adopted. It would
encourage individuals to avoid filing errors by retaining
counsel, increasing both the cost and likelihood of litigation.
IV
The Federal Government interacts with individual citizens
through all but countless forms, schedules, manuals, and

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407 Cite as: 552 U. S. 389 (2008)
Opinion of the Court
worksheets. Congress, in most cases, delegates the format
and design of these instruments to the agencies that adminis
ter the relevant laws and processes. An assumption under
lying the congressional decision to delegate rulemaking and
enforcement authority to the agency, and the consequent
judicial rule of deference to the agency’s determinations,
is that the agency will take all efforts to ensure that af
fected parties will receive the full benefits and protections
of the law. Here, because the agency failed to treat re
spondent’s filing as a charge in the first instance, both sides
lost the benefits of the ADEA’s informal dispute resolution
process.
The employer’s interests, in particular, were given short
shrift, for it was not notified of respondent’s complaint until
she filed suit. The court that hears the merits of this litiga
tion can attempt to remedy this deficiency by staying the
proceedings to allow an opportunity for conciliation and set
tlement. True, that remedy would be imperfect. Once the
adversary process has begun a dispute may be in a more
rigid cast than if conciliation had been attempted at the
outset.
This result is unfortunate, but, at least in this case, un
avoidable. While courts will use their powers to fashion the
best relief possible in situations like this one, the ultimate
responsibility for establishing a clearer, more consistent
process lies with the agency. The agency already has made
some changes to the charge-filing process. See Brief for
United States as Amicus Curiae 3, n. 2 (noting that the In
take Questionnaire form respondent filed has been replaced
with a reworded form). To reduce the risk of further misun
derstandings by those who seek its assistance, the agency
should determine, in the first instance, what additional revi
sions in its forms and processes are necessary or appropriate.
The judgment of the Court of Appeals is affirmed.
It is so ordered.

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408 FEDERAL EXPRESS CORP. v. HOLOWECKI
Thomas, J., dissenting
Justice Thomas, with whom Justice Scalia joins,
dissenting.
Today the Court decides that a “charge” of age discrimina
tion under the Age Discrimination in Employment Act of
1967 (ADEA) is whatever the Equal Employment Opportu
nity Commission (EEOC) says it is. The filing at issue in
this case did not state that it was a charge and did not in
clude a charge form; to the contrary, it included a form that
expressly stated it was for the purpose of “pre-charge” coun
seling. What is more, the EEOC did not assign it a charge
number, notify the employer of the complainant’s 1 alle
gations, or commence enforcement proceedings. Notwith
standing these facts, the Court concludes, counterintuitively,
that respondent’s filing is a charge because it manifests an
intent for the EEOC to take “some action.” Ante, at 400.
Because the standard the Court applies is broader than
the ordinary meaning of the term “charge,” and because it
is so malleable that it effectively absolves the EEOC of its
obligation to administer the ADEA according to discernible
standards, I respectfully dissent.
I
As the Court notes, the ADEA directs the agency to take
certain actions upon receipt of a “charge” but does not define
that word. Ante, at 395. Because there is nothing to sug
gest that Congress used “charge” as a term of art, we must
construe it “in accordance with its ordinary or natural mean
ing.” See FDIC v. Meyer, 510 U. S. 471, 476 (1994). Dic
tionaries define a “charge” as an accusation or indictment.
1 This opinion will refer to potentially charging parties who contact the
EEOC about discrimination as “complainants.” I use this term for sim
plicity and do not intend to invoke the distinction in the EEOC’s regula
tions between complainants and charging parties. See 29 CFR § 1626.3
(2007). Similarly, I use “respondent” not as it appears in the EEOC’s
regulations—referring to the “prospective defendant in a charge or com
plaint,” ibid.—but as a reference to the responding parties in this case.

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409 Cite as: 552 U. S. 389 (2008)
Thomas, J., dissenting
See, e. g., American Heritage Dictionary 312 (4th ed. 2000);
Webster’s Third New International Dictionary 377 (1993).
In legal parlance, a “charge” is generally a formal allegation
of wrongdoing that initiates legal proceedings against an al
leged wrongdoer. In criminal law, for example, a charge is
defined as “[a] formal accusation of an offense as a prelimi
nary step to prosecution.” Black’s Law Dictionary 248 (8th
ed. 2004). Similarly, in this context, a “charge” is a formal
accusation of discrimination that objectively manifests an in
tent to initiate enforcement proceedings against the em
ployer. Just as a complaint or police report that describes
the commission of a crime is not a “charge” under the crimi
nal law, so too here, a document that merely describes the
alleged discrimination and requests the EEOC’s assistance,
but does not objectively manifest an intent to initiate en
forcement proceedings, is not a “charge” within the meaning
of the ADEA.
This understanding of a “charge” is common in administra
tive law. The regulations governing allegations of unlawful
employment practices at the Government Accountability Of
fice, for example, define “charge” as “any request filed . . . to
investigate any matter” within the jurisdiction of the agency.
4 CFR § 28.3 (2007). In actions alleging unfair labor prac
tices, the “purpose of the charge is . . . to set in motion the
[National Labor Relations] Board’s investigative machinery.”
Flex Plastics, Inc., 262 N. L. R. B. 651, 652 (1982). In ac
cordance with the charge’s purpose of triggering an investi
gation that involves notice to the employer, agencies often
indicate that the charge will not be kept confidential. For
example, the EEOC anticipates that a charge usually will be
released to the employer. See, e. g., 1 EEOC Compliance
Manual § 2.2(b), p. 2:0001 (Aug. 2002) (hereinafter EEOC
Manual) (providing that correspondence may be processed as
a charge if, inter alia, it “does not express concerns about
confidentiality”); id., § 3.6, at 3:0001 (June 2001) (noting that
“it is EEOC policy to . . . serve the [employer] with a copy

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410 FEDERAL EXPRESS CORP. v. HOLOWECKI
Thomas, J., dissenting
of ADEA charges unless this will impede EEOC’s law en
forcement functions”).
The ordinary understanding of the term “charge” applies
equally in the employment discrimination context, where a
charge is a formal accusation that an employer has violated,
or will violate, employment discrimination laws. See 29
CFR § 1626.3 (2007) (describing a charge as an allegation that
an employer “has engaged in or is about to engage in actions
in violation of the Act”). The charge is presented to the
agency with jurisdiction over such matters—the EEOC—to
trigger enforcement proceedings that are intended to elimi
nate violations of the ADEA. See 29 U. S. C. § 626(d) (di
recting the agency, upon receipt of a charge, to notify the
employer and take steps to eliminate the allegedly unlawful
practice). I therefore agree with the EEOC that the statu
tory term “charge” must mean, at a minimum,2 a writing
that objectively indicates an intent to initiate the agency’s
enforcement processes. See Brief for United States as Ami
cus Curiae 15 (noting that a charge must “objectively mani
fest an intent to make a formal accusation” of an ADEA
violation).3 In any event, respondent’s documents do not
2 I do not mean to foreclose the possibility that the EEOC may include
additional elements in its definition, as long as they are reasonable con
structions of the statutory term “charge.” See Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 843–845 (1984).
3 As the EEOC acknowledges, its position on whether intent is required
has varied over the years. See Brief for United States as Amicus Curiae
8, 16–17, n. 8. In 1983, the agency issued its regulations, which contain no
intent requirement. Final Procedural Regulations; Age Discrimination in
Employment Act, 48 Fed. Reg. 138. Five years later, it argued against
an intent requirement as amicus curiae in Steffen v. Meridian Life Ins.
Co., 859 F. 2d 534, 544 (CA7 1988) (“The EEOC, which has appeared as
amicus curiae on Steffen’s behalf, has supported Steffen’s contention that
a completed Intake Questionnaire, in and of itself, constitutes a charge”).
In 2002, the agency issued an internal memorandum and internal guidance
documents including an intent requirement. See Memorandum from Eliz
abeth M. Thornton, Director, Office of Field Programs, EEOC, to All Dis
trict, Area, and Local Office Directors et al. (Feb. 21, 2002), online at http://

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411 Cite as: 552 U. S. 389 (2008)
Thomas, J., dissenting
objectively indicate an intent to initiate the EEOC’s proc
esses; any test that construes them otherwise is, in my opin
ion, an unreasonable construction of the statutory term
“charge,” and unworthy of deference. See Chevron U. S. A.
Inc. v. Natural Resources Defense Council, Inc., 467 U. S.
837, 843–845 (1984).
II
The cumulative effect of two aspects of respondent’s docu
ments, the Court holds, illustrates that she filed a charge of
discrimination: first, her request in her affidavit that the
agency take action, and second, her marking of a box on the
questionnaire form consenting to the release of her identity
to her employer, Federal Express Corporation (FedEx).
Ante, at 405–406. In my view, neither of these factors, sepa
rately or together, objectively indicates that respondent in
tended to initiate the EEOC’s processes.
The last substantive paragraph of respondent’s affidavit
said: “Please force Federal Express to end their age dis
crimination . . . .” App. 273. But the issue here is not
whether respondent wanted the EEOC to cause the com
www.eeoc.gov/charge/memo-2-21-02.html (all Internet materials as visited
Feb. 22, 2008, and available in Clerk of Court’s case file); 1 EEOC Manual
§ 2.2(b), at 2:0001 (noting that correspondence must, inter alia, “consti
tut[e] a clear and timely request for EEOC to act” before it can be con
strued as a charge). The EEOC contradicted itself four years later, when
it again took the position that there was no intent requirement in Gordon
v. Shafer Contracting Co., 469 F. 3d 1191, 1194 (CA8 2006) (“In an amicus
brief, the EEOC urges us to accept such a verified Intake Questionnaire
as satisfying the charge requirement”); see also Brief for United States as
Amicus Curiae 16–17, n. 8. The following year, the EEOC issued an
other internal memorandum and updated the Frequently Asked Questions
section of its Web site, including the intent requirement in each. Memo
randum from Nicholas M. Inzeo, Director, Office of Field Programs,
EEOC, to All District, Field, Area, and Local Office Directors et al. (Aug.
13, 2007) (hereinafter Inzeo Memorandum), online at http://www.eeoc.gov/
charge/memo-8-13-07.html; EEOC Frequently Asked Questions (herein
after EEOC FAQ), Answer to “How do I file a charge of employment
discrimination?” online at https://eeoc.custhelp.com.

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412 FEDERAL EXPRESS CORP. v. HOLOWECKI
Thomas, J., dissenting
pany’s compliance by any means; it is whether she wanted
the EEOC immediately to employ the particular method of
enforcement that consists of filing a charge. Her request to
“force Federal Express to end their age discrimination”
could have been met by the agency’s beginning the inter
viewing and counseling process that would ultimately lead
to a charge. Or the agency could have proceeded to enforce
ment without a charge. See infra, at 417, n. 5 (discussing
the EEOC’s authority to investigate age discrimination in
the absence of any charge). Alternatively, after receiving
indications of repeated violations by a particular company on
many intake questionnaires, the agency could have ap
proached the company informally, effectively forcing compli
ance by the threat of agency litigation. See B. Lindemann &
D. Kadue, Age Discrimination in Employment Law 470
(2003) (“The EEOC may commence litigation under the
ADEA without having to first file a charge, so long as it has
attempted conciliation”). That sort of action would also
have satisfied respondent’s request. Respondent’s state
ment to the EEOC no more constitutes expression of a pres
ent intent to file a charge than her request to a lawyer that
he put an end to her employer’s discrimination would consti
tute expression of present intent to file a complaint. The
Court is simply wrong to say that a charge must merely re
quest that the agency take “some action,” ante, at 400, or
“whatever action is necessary to vindicate her rights,” ante,
at 398, or unspecified “remedial action to protect the employ
ee’s rights,” ante, at 402. To the contrary, a charge must
request that the agency take the particular form of remedial
action that results from filing a charge.
Aside from revealing the ambiguity in its definition of a
“charge,” the Court’s constructions stretch the term far be
yond what it can bear. A mere request for help from a com
plainant—who, the Court acknowledges, may “have no de
tailed knowledge of the relevant statutory mechanisms and
agency processes,” ante, at 403—cannot be equated with

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an intent to file a charge. The Court’s test permits no prin
cipled basis for distinguishing a request for the agency to
take what might be described as “pre-charge” actions, such
as interviewing and counseling, from a request for the
agency to commence enforcement proceedings. All are
properly considered “agency action,” all presumably would
be part of the agency’s remedial processes, and all are de
signed to protect the employee’s rights. But a complainant’s
intent to trigger actions unrelated to charge processing
plainly cannot form the basis for distinguishing charges from
other inquiries because it lacks any grounding in the mean
ing of the statutory term.
Even if respondent’s statement, viewed in isolation, could
reasonably be understood as reflecting the requisite intent,
it must be viewed in context. It is clear that respondent’s
filing, taken as a whole, did not amount to a request for the
EEOC to commence enforcement proceedings. In fact, re
spondent’s affidavit is replete with indications of an intent
not to commence formal agency action. The entire first
paragraph is an extensive statement that respondent had
been assured her affidavit would be kept confidential, App.
266, suggesting that she did not intend the document to
initiate enforcement proceedings, which would require the
EEOC to notify FedEx of her allegations. See 1 EEOC
Manual § 2.2(b), at 2:0001 (stating that correspondence ex
pressing concerns about confidentiality should not be treated
as a charge). She identified the document as a “complaint.”
App. 266. And although the document was notarized and
respondent attested to its truthfulness, nowhere did she
state that she authorized the EEOC to attempt to resolve
the dispute. Id., at 266–274. Finally, the affidavit was
attached to the intake questionnaire, which also gave no
objective indication of any intent to activate the EEOC’s
enforcement proceedings.
As the Court concedes, the agency would not consider re
spondent’s intake questionnaire a charge. Ante, at 405. In

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414 FEDERAL EXPRESS CORP. v. HOLOWECKI
Thomas, J., dissenting
deed, we are in agreement that the form contains numerous
indicators that it will not be considered a charge. Ibid.
(stating that the “design of the form . . . does not give rise
to the inference that the employee requests action against
the employer,” and “[i]n fact the wording of the question
naire suggests the opposite”). The title of the form, “Intake
Questionnaire,” 4 suggests that its purpose is preliminary in
formation gathering, not the filing of a formal charge. Like
wise, the statement at the top of the form indicates that fur
ther steps are anticipated: “Please answer the following
questions, telling us briefly why you have been discriminated
against in employment. An officer of the EEOC will talk
with you after you complete this form.” App. 265. The
form gives the complainant the opportunity to keep her iden
tity confidential. Ibid. And it contains a Privacy Act
statement on the back, prominently referenced on the front
of the form, which states that the information provided on
the questionnaire “will be used by Commission employees to
determine the existence of facts relevant to a decision as
to whether the Commission has jurisdiction over potential
charges, complaints or allegations of employment discrimina
tion and to provide such pre-charge filing counseling as is
appropriate.” Ibid. (emphasis added).
The Court apparently believes that these objective indica
tors are trumped by the fact that respondent marked the
4 An apparently more recent version of Form 283 is entitled “Charge
Questionnaire,” and states that, “[w]hen this form constitutes the only
timely written statement of alleg[ed] . . . discrimination, the Commission
will, consistent with 29 CFR 1601.12(b) and 29 CFR 1626.8(b), consider it
to be a sufficient charge of discrimination under the relevant statute(s).”
1 EEOC Manual, Exh. 1–B, at 1:0006 (June 2001); see also B. Lindemann &
D. Kadue, Age Discrimination in Employment Law 477, n. 14 (2003). Al
though the “Charge Questionnaire” form is dated “Test 10/94,” and is
the only questionnaire form included in the EEOC Manual, it was not the
form respondent used. Her intake questionnaire form was dated 1987.
App. 265.

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box authorizing the agency to disclose her identity to her
employer. That portion of the form states: “Normally, your
identity will be disclosed to the organization which allegedly
discriminated against you. Do you . . . Consent or . . . not
consent to such disclosure?” Ibid. Since the form states it
is for a narrow purpose and that identities of complainants
are normally disclosed, there is no reason to view respond
ent’s checking of the box as converting the form’s stated nar
row purpose to a broader one.
In comparison to the intake questionnaire, the “Charge of
Discrimination” form contains a number of objective indica
tions that it will trigger the agency’s enforcement processes.
Indeed, its very title clearly indicates that it is a charge, and
it contains a space for a charge number. 1 EEOC Manual
Exh. 2–C, at 2:0009. Although both forms require the com
plainant to sign and attest that the information is correct,
only the charge of discrimination requests an attestation that
the complainant intends to initiate the agency’s procedures.
Just above the space for the complainant’s signature, the
form states “I want this charge filed with both the EEOC
and the State or local Agency, if any. I will advise the agen
cies if I change my address or telephone number and I will
cooperate fully with them in the processing of my charge in
accordance with their procedures.” Ibid. The form notes
“Charging Party” at the bottom of the space for the signa
ture. Ibid. And it states on the back that “[t]he purpose
of the charge, whether recorded initially on this form or in
some other way reduced to writing and later recorded on
this form, is to invoke the jurisdiction of the Commission.”
Id., at 2:0010. Also on the back, under “ROUTINE USES,”
the charge of discrimination states that “[i]nformation pro
vided on this form will be used by Commission employees
to guide the Commission’s investigatory activities.” Ibid.
Although the EEOC prefers to receive a completed charge
form, see Brief for United States as Amicus Curiae 18, n. 9

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416 FEDERAL EXPRESS CORP. v. HOLOWECKI
Thomas, J., dissenting
(noting that “EEOC’s preferred practice is indeed to receive
a completed Form 5 whenever possible”), another writing
could indicate a complainant’s intent to commence the
EEOC’s enforcement processes. But the form chosen by
the complainant must be viewed as strong evidence of the
complainant’s intent, and that evidence should be deemed
overcome only if the document, viewed as a whole, compels
that conclusion.
For the reasons I have described, respondent’s intake
questionnaire and attached affidavit do not objectively indi
cate that she intended to initiate the EEOC’s enforcement
processes. The Court’s conclusion that the two factors
“were enough to bring the entire filing within the definition
of charge,” ante, at 406, is not supported by the facts and,
in my view, reveals that the Court’s standard is sufficiently
vacuous to permit the agency’s post hoc interpretation of
a document to control. But we cannot, under the guise of
deference, sanction an agency’s use of a standard that the
agency has not adequately explained. Cf., e. g., Pearson v.
Shalala, 164 F. 3d 650, 660–661 (CADC 1999) (equating
an agency’s denial of a party’s request based on the appli
cation of a vague term with simply saying “no” without
explanation).
The malleability of the Court’s test is further revealed by
its statement that “[t]here might be instances where the indi
cated discrimination is so clear or pervasive that the agency
could infer from the allegations themselves that action is re
quested and required.” Ante, at 405. The clarity or perva
siveness of alleged discrimination is irrelevant to the employ
ee’s intent to file a charge. Although the Court states that
the “agency is not required to treat every completed Intake
Questionnaire as a charge,” ibid., it apparently would permit
the EEOC to do so, because under the Court’s test the
EEOC can infer intent from circumstances—such as “clear

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417 Cite as: 552 U. S. 389 (2008)
Thomas, J., dissenting
or pervasive” discrimination—that have no grounding in the
“intent to act” requirement.5
III
Yet another indication that respondent’s documents did not
objectively manifest an intent to initiate the EEOC’s en
forcement processes is that the agency did not treat them as
a charge. It did not assign a charge number, and it did not
notify FedEx or commence its enforcement proceedings.
This is not surprising: The EEOC accepts charges via a thor
ough intake process 6 in which completed intake question
naires are not typically viewed as charges, but are used to
assist the EEOC in developing the charge. A complainant
visiting an EEOC office may be asked to complete an intake
questionnaire. See EEOC FAQ, Answer to “How do I file
a charge of employment discrimination?” online at https://
eeoc.custhelp.com. An EEOC investigator then conducts a
precharge interview, 1 EEOC Manual § 2.4, at 2:0001; 2 B.
Lindemann & P. Grossman, Employment Discrimination
5 Perhaps the Court’s statement is intended to address the EEOC’s au
thority to investigate alleged discrimination even in the absence of a
charge. Under Title VII, these are called “Commissioner Charges.”
See, e. g., 29 CFR § 1601.11(a). While the ADEA does not provide for
such charges, the EEOC has independent authority to investigate age dis
crimination in the absence of any charge. See 29 U. S. C. § 626(a); 29 CFR
§ 1626.4; Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 28 (1991);
1 EEOC Manual § 8.1, at 8:0001 (June 2001). If this is what the Court
means by its statement that allegations of “clear or pervasive” discrimina
tion may indicate to the agency that action is “required,” ante, at 405, then
it is not clear how it is relevant to the standards at issue in this case for
evaluating an individual complainant’s filing.
6 This process, in all respects relevant to this case, has been consistently
used by the agency since shortly after it assumed jurisdiction over ADEA
actions in 1979. See 1 EEOC Manual §§ 2.1–2.7, at 2:0001–2:0006 (2002);
2 B. Lindemann & P. Grossman, Employment Discrimination Law 1220
(3d ed. 1996); B. Schlei & P. Grossman, Employment Discrimination Law
939–940, 942, 948 (2d ed. 1983).

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418 FEDERAL EXPRESS CORP. v. HOLOWECKI
Thomas, J., dissenting
Law 1685 (4th ed. 2007), covering a range of topics, includ
ing applicable laws, the complainant’s allegations and other
possibly discriminatory practices, confidentiality, time limits,
notice requirements, and private suit rights. See 1 EEOC
Manual §§ 2.4(a)–(g), at 2:0001–2:0003. Using the informa
tion contained in the intake questionnaire and gathered dur
ing the interview, the investigator drafts the charge on a
Form 5 Charge of Discrimination according to specific
agency instructions, and also drafts an affidavit containing
background data. See id., § 2.5, at 2:0003–2:0005. The in
vestigator assigns a charge number and begins the proc
ess of serving notice on the employer and investigating
the allegations. See 2 Lindemann & Grossman, supra, at
1685–1690.
Charges are thus typically completed and filed by the
agency, not the complainant. See Edelman v. Lynchburg
College, 535 U. S. 106, 115, n. 9 (2002) (“The general practice
of EEOC staff members is to prepare a formal charge of
discrimination for the complainant to review and to verify”
(citing Brief for United States et al. as Amici Curiae 24));
EEOC FAQ, Answers to “Where can I obtain copies of the
forms to file a charge?” (stating that the agency’s policy is
not to provide blank charge forms); “How do I file a charge
of employment discrimination?” (“When the field office has
all the information it needs, you will be counseled regarding
the strengths and weaknesses of a potential charge and/or
you will receive a completed charge form (Form 5) for your
signature”), online at https://eeoc.custhelp.com. Once the
charge is complete, the EEOC notifies the employer of the
charge, usually attaching a copy of the completed charge
form. 1 EEOC Manual § 3.6, at 3:0001 (“While 29 CFR
§ 1626.11 only requires notice to the [employer] that
an ADEA charge has been filed, it is EEOC policy to also
serve the [employer] with a copy of ADEA charges un
less this will impede EEOC’s law enforcement functions”);

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Inzeo Memorandum, online at http://www.eeoc.gov/charge/
memo-8-13-07.html.
To be sure, the EEOC is prepared to accept charges by
other methods. If the complainant cannot or will not visit
an EEOC office, an investigator may conduct the precharge
interview and take the charge by telephone, see 1 EEOC
Manual §§ 2.3, 2.4, at 2:0001, but the agency must reduce the
allegations to writing before they will be considered a
charge, see 29 CFR § 1626.8(b) (“[A] charge is sufficient when
the Commission receives from the person making the charge
either a written statement or information reduced to writing
by the Commission that conforms to the requirements of
§ 1626.6”). When the EEOC receives correspondence that
is a potential charge, the investigator must contact the com
plainant and conduct an intake interview. See 1 EEOC
Manual § 2.2(a), at 2:0001. Alternatively, if the correspond
ence “contains all information necessary to begin investigat
ing, constitutes a clear and timely request for EEOC to act,
and does not express concerns about confidentiality or retali
ation,” then the investigator may process it as a charge with
out conducting an interview. See id., § 2.2(b), at 2:0001.
Thus, while the EEOC does not typically view an intake
questionnaire as a charge, I would not rule out the possibility
that, in appropriate circumstances, an intake questionnaire,
like other correspondence, could contain the elements neces
sary to constitute a charge. But an intake questionnaire—
even one accompanied by an affidavit—should not be con
strued as a charge unless it objectively indicates an intent
to initiate the EEOC’s enforcement processes. As I have
explained, respondent’s intake questionnaire and attached af
fidavit fall short of that standard. I would hold that the
documents respondent filed with the EEOC were not a
charge and thus did not preserve her right to sue.
The implications of the Court’s decision will reach far be
yond respondent’s case. Today’s decision does nothing—ab

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420 FEDERAL EXPRESS CORP. v. HOLOWECKI
Thomas, J., dissenting
solutely nothing—to solve the problem that under the
EEOC’s current processes no one can tell, ex ante, whether
a particular filing is or is not a charge. Given the Court’s
utterly vague criteria, whatever the agency later decides to
regard as a charge is a charge—and the statutorily required
notice to the employer and conciliation process will be
evaded in the future as it has been in this case. The Court’s
failure to apply a clear and sensible rule renders its decision
of little use in future cases to complainants, employers, or
the agency.
For these reasons, I would reverse the judgment below.