EEOC Proposes Changes to Complaint Process for Federal Employees

The U.S. Equal Employment Opportunity Commission (EEOC) is proposing sweeping changes to the process federal employees and job applicants use to pursue workplace discrimination complaints, arguing that the existing system has become too slow, complicated, and burdensome.

The Aug. 26 proposal would revise the federal-sector equal employment opportunity rules under 29 C.F.R. Part 1614, which govern discrimination complaints against federal agencies. The changes would not affect the EEOC charge process for private-sector employees and employers.

“The internal complaint process for federal employees and applicants is supposed to provide a swift, informal path to resolution. But the current system is deeply broken,” EEOC Chair Andrea Lucas said in announcing the proposal. She said the changes are intended to make the process “faster, fairer, and more straightforward.”

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Eliminating Mandatory Counseling

One of the most significant changes would eliminate mandatory pre-complaint EEO counseling. Currently, federal employees and applicants generally must contact an agency EEO counselor within 45 days of an alleged discriminatory action. Counseling ordinarily must be completed within 30 days, although alternative dispute resolution (ADR) can extend that period. Only after that process may an individual file a formal complaint with the agency.

Under the proposed rule, employees could instead file complaints directly with their agencies.

The EEOC said data show counseling rarely resolves disputes. Between 2017 and 2021, federal agencies conducted an average of 35,618 counseling matters annually, but only about 1% resulted in settlements through EEO counseling. By comparison, separate agency ADR programs resolved approximately 11% of pre-complaint matters. 

Hearings Would Become Less Common

The proposal would also fundamentally change the role of EEOC administrative judges. Under current rules, after an agency investigation — which generally must be completed within 180 days — a complainant may request either a hearing before an EEOC administrative judge or a final agency decision.

The proposed system would generally require the agency to make the initial decision. A complainant could then appeal to the EEOC, which could refer a case for administrative judge proceedings when a hearing or other additional proceedings are deemed necessary or efficient.

The EEOC cited lengthy delays as justification for the shift. From fiscal years 2021 through 2025, cases entering its hearing process took an average of 442 days from docketing to an administrative judge’s decision. For complainants who ultimately prevailed, the average was 962 days.

Other proposed changes would move class complaints out of the EEOC administrative adjudication system and toward federal courts, clarify procedures for “mixed cases” involving discrimination and other personnel issues, revise standards governing attorney fees, and allow related individual complaints to be processed jointly.

The rule would also implement provisions of the 2020 Elijah E. Cummings Federal Employee Antidiscrimination Act by increasing public reporting on complaint outcomes and disciplinary actions and strengthening the independence of agency EEO programs.

Employees would retain key rights, including access to ADR, agency investigations and final decisions, de novo EEOC review on appeal, and the ability to pursue claims in federal court. The changes would apply prospectively and would not alter complaints already being processed.

The proposal is not yet final. Once it is published in the Federal Register, the public will have 30 days to submit comments before the EEOC considers whether to issue a final rule.