EEOC votes to propose new rule stripping feds of hearing rights, class action complaints

The Equal Employment Opportunity Commission voted 2-1 Wednesday to propose new regulations that would overhaul how federal workers may pursue workplace discrimination claims, removing employees’ right to request a hearing before an administrative judge and outright banning class action cases outside of federal court.

Currently, federal workers alleging discrimination at their employing agency must undergo up to 90 days of pre-complaint counseling, which includes informing employees about the EEO process and sometimes mediation, after which their agency will conduct an internal investigation. Once that is complete—or after 180 days—the employee may request a hearing before an EEOC administrative judge.

But under a new proposed rule, set for publication Friday in the Federal Register, complainants would no longer go through pre-complaint counseling, instead directly filing their complaints to EEOC within 60 days of the alleged discriminatory incident. And they would no longer be guaranteed a hearing; that decision would instead be made by officials within the EEOC’s Office of the Federal Sector.

Under the plan, complainants would have to affirmatively request a hearing when they appeal a final agency decision, and in some cases submit an explanation justifying its need. Those who do receive a hearing under the new process would no longer have the benefit of discovery, a practice by which parties can request and receive documentation related to the case.

Additionally, while employees with similar allegations of discrimination may elect to have their individual complaints processed “jointly,” EEOC would cease consideration of class action cases. If employees wish to proceed as a class, they would each have to exhaust their individual cases before the agency and then file a class action lawsuit in federal court.

EEOC’s two Republican appointees, Chairwoman Andrea Lucas and Commissioner Brittany Bull Panuccio, said the proposed changes are needed to speed up the resolution of discrimination cases. Between fiscal 2021 and 2025, successful complainants waited an average of more than two years from when they requested a hearing to receive an administrative judge’s decision granting relief.

“As things stand today, EEOC administrative judges spend most of their time and energy on motion practices for cases, sometimes often cases without merit,” Lucas said. “The proliferation of so many clearly meritoriousless complaints indicates the process has become susceptible to abuse. Employees can use lengthy and complex administrative judge proceedings to evade performance accountability and stymie routine performance personnel actions that have no plausible link to unlawful discrimination.”

Lucas argued that though federal employees currently have the expectation that they may request a hearing before an administrative judge, that technically is not a right.

“It’s important to start with the concept of what in fact are the statutory rights provided by Title VII [of the 1964 Civil Rights Act],” she said. “What we’re talking about here is not changing anyone’s statutory rights. We’re talking about an administrative process that EEOC has created, a process that we were entitled to take some steps to do via rulemaking, and that we can also have the authority to change it via rulemaking. Again, it is a creature of regulatory creation that is not working right now for federal employees, and therefore we have the right and the obligation to reform that process.”

But Commissioner Kalpana Kotagal, who as the commission’s lone Democrat appointee voted against the regulations, said that while she would not defend the status quo, the new proposal “kneecaps” federal employees who believe they’re victims of discrimination.

By removing complainants’ right to a hearing, agencies, whose internal EEO investigations routinely miss deadlines for submitting a final agency decision, would have no incentive to ensure their investigations are timely and thorough, she said. With reports of severe contractions in the headcounts at EEO, HR and civil rights offices across government, many employees could be left in "limbo," unable to advance their complaint.

“In the past, EEOC has identified impediments to [final agency decisions], including inadequate investigations and heavy caseloads,” Kotagal said. "With no pre-complaint counseling and mandatory FADs, these challenges will balloon under this proposal. Although this [notice of proposed rulemaking] purports to make the process speedier, the reality is that myriad other aspects of it, like insufficient consequences for noncompliance, undermine that objective symptomatically.”

Courtney Mickman, an attorney focusing on federal employment issues and a former EEOC administrative judge, said the proposal for agency staff to vet which complaints receive an administrative judge, estimated in the regulations as taking “one half hour,” is unrealistic.

“30 minutes is a truly unbelievable statement,” she said. “Earlier this afternoon, I had an initial conference in a case, and the report of investigation was 184 pages, and I specifically told the judge in that case that the report was deficient,” she said. “[I’m] not sure how many people can line-by-line go through 184 pages in 30 minutes, but the average report is 500 pages. And in lengthy hostile work environment claims I’ve seen ROIs hit 1,000 or 2,000 pages.”

And Michael Fallings, managing partner at Tully Rinckey, another federal employment law firm, said that the removal of discovery from EEOC’s process would hamstring complainants and administrative judges alike.

“The [agency] investigators are asking boiler plate questions in writing for officials to answer, so that means there are no follow ups, and a lot of times management officials just don’t understand a question and write, ‘I don’t understand,’” he said. “There’s not really a good or consistent process for obtaining relevant documentation either—that’s why discovery is often needed, to seek that additional info. Sometimes what happens is the administrative judge already recognizes and orders for additional documents to be produced by the agency or the complainant, but without discovery that’s not going to occur.”

The move to end consideration of class complaints, which EEOC officials said would not apply to already filed cases, comes after the agency quietly instructed its staff to cease work on those cases, and a week after the commissioners by a 2-1 vote moved to decertify a handful of classes in pending cases. In a statement, the American Federation of Government Employees, which sued the agency last month over the stop-work directive, decried the proposal.

"The changes being proposed by the EEOC will result in discrimination cases taking longer to resolve at greater cost to taxpayers, which is a disservice both to federal employees and the American public,” said Kendrick Roberson, the union's national vice president for women and fair practices. “The Trump administration is assigning the fox to guard the hen house. Under these proposed changes, when federal workers allege that an agency has discriminated against them, they will no longer have the right to have their case reviewed by a neutral judge. Instead, the agency will decide if the agency engaged in discrimination, and that is a crystal-clear conflict of interest and a denial of justice.”

Kotogal sought to at least secure a longer 60-day window for members of the public to submit comments on the proposed rule, but was rebuffed. Comments on EEOC’s proposal will be due Sept. 27.