Comment on the EEOC’s Proposed Rule, “Federal Sector Equal Employment Opportunity” (RIN 3046-AB46)
September 28, 2026
The Equal Employment Opportunity Commission’s proposed rule prioritizes “efficiency” at the expense of Title VII’s Federal-sector effectiveness. Throughout the NPRM, misleading data and speculation are deployed to justify curbing agency accountability. Circular reasoning erodes employees’ due process by producing a scheme which, practically speaking, would require decision makers to judge the merits of a case before the case can ever be made.
In our comment, we show how the proposed changes to the EEO process are fundamentally at odds with the core purpose of § 717 and the EEOC’s mission of “protecting the rights of all federal employees and applicants to work free from unlawful discrimination.”[1] To do so, we will outline the rule’s proposed changes that most flagrantly undermine § 717. We will note that the surrounding process of this rulemaking, as well as the rule itself, undermines any confidence in its ostensible effectiveness in addressing discrimination meaningfully in the federal sector. Finally, we urge the Commission not to finalize this rule.
The Proposed Rule Would Undermine the EEO Process’s Accessibility
Contrary to the purpose of § 717, the proposed process would make the EEO process inaccessible for employees by further stacking the deck in favor of agencies at the expense of employees’ rights. It does this by,
- Removing pre-complaint counseling and not providing an adequate alternative;
- Eliminating the EEOC hearing process;
- Reducing attorney’s fees;
- Eliminating class actions; and,
- Holding agencies less accountable for noncompliance.
Removing pre-complaint counseling and not providing an adequate alternative
The proposed rule removes pre-complaint counseling without offering an adequate alternative. Federal employees hold a considerable reliance interest in pre-complaint counseling, which the Commission has failed to address. 91 FR 55709.
Most employees lack legal training. Many cannot afford to retain private counsel. Thus, the EEO process is only accessible insofar as it is navigable for pro se employees. Pre-complaint counseling does not level the field between employees and agencies completely, but it does provide employees with the most basic tools required to proceed. This is by design: one which might be improved, certainly, but not fundamentally altered in terms of function.
Pre-complaint counseling plays a key role in this respect by educating employees on their rights and the EEO process (after which some may elect not to proceed). The pre-complaint process provides a pathway for employees to be heard, and allows for mediations to resolve complaints. Further, pre-complaint counseling aides in filtering out complaints that may not be based in discrimination, which benefits all parties, especially agencies.
Holding agencies less accountable for noncompliance
We request clarification on how agencies will be held appropriately accountable under the proposed system. The NPRM leaves open the question of how agencies will be held accountable for failing to provide a complete record, and meeting the set deadline to provide a complete and thorough investigation report. Without accountability, what reason do agencies have to conduct thorough and meaningful investigations?
At present, agencies routinely miss deadlines, especially the formal complaint investigation deadline. Agencies have an interest in not finding themselves liable for discrimination and yet they are the ones charged with conducting the formal EEO investigation. ROIs frequently are missing key information because investigators work for the agency they are investigating. Agencies do not face sufficient consequences, and so the problems persist. Change is merited, but the EEOC’s failure to hold agencies to account is exacerbated, not remedied, by the proposed rule.
As written, the proposed rule contemplates that the risk of such conflicts of interest is mitigated in a few ways.
First, the Commission claims its “targeted appellate process,” i.e., forwarding a complaint to an Administrative Judge if “efficient” and “necessary,” will hold agencies accountable for incomplete records, and incentivize agencies to provide impartial and complete ROIs. 91 FR 55707–55708. This safeguard collapses if the EEOC is unable to reliably and “efficiently” assess the merit of a given appellant’s complaint based on a record controlled by the very agency under investigation. It is unclear how the Commission will do so given their self-identified resource constraints. In reality, employees will shoulder the costs.
Second, the Commission claims extant data-posting frameworks will hold agencies accountable for EEO compliance. 91 FR 55708. Given agencies are not held sufficiently accountable at present, we question the effectiveness of relying principally upon the No FEAR Act. And, as discussed below, data alone does not tell a complete story; selective and potentially misleading use of data presents a serious concern in the proposed accountability scheme. Publicly posted data may help the EEOC assess whether agencies are meeting their EEO responsibilities, but without enforcement mechanisms, it is only data, not accountability.
Other proposed revisions do not only fail to hold agencies accountable, but actively reduce current accountability measures. For example, the change to § 1614.108(c)(3) would lessen the consequences for agencies that fail to fully cooperate with an EEO investigation.[2] Per the NRPM, should an agency fail to fully cooperate with its own investigation—of which it is both the investigator and the investigated—the agency will have the authority to consider its own failure when evaluating evidence. What ensures that the agency will use its authority to give due consideration to its own failure when determining its own liability?
The Proposed Rule Would Undermine the EEO Process’s Meaningfulness
By failing to guarantee complainants a thorough, fair, and impartial review, the proposed rule would undermine the meaningfulness of the EEO process. It does so by:
- Removing employees’ right to request a hearing
- Denying employees’ access to discovery
- Prioritizing “efficiency” over due process
Removing employees’ right to request a hearing
The hearing is the best chance many employees have for an impartial review, and often the only chance for discovery. Before then, it is the agency who controls access to needed material evidence in addition to controlling the initial evidentiary record. The prospect of a hearing before an impartial administrative judge, who may themselves order further discovery or impose sanctions on noncompliant agencies, is one of the few mechanisms holding agencies accountable for the independence and completeness of their investigation.
To support its claim that hearings are not worth the expense, the NPRM cites a statistic that the EEOC itself has identified as misleading: that only 1.7% of hearing requests produce a finding of discrimination. 91 FR 55692. This figure is, to quote the EEOC’s educational literature on the Federal Sector EEO process, “a statistic that only tells part of the story.”[3]
An AJ’s finding of discrimination is not the only way for a complaint to succeed, nor the sole indicator of merit. 91 FR 55692. Cases may resolve favorably for the complainant through settlement before a formal determination of discrimination. Having multiple chances (pending agency cooperation) to resolve the matter prior to a formal determination benefits all by cutting down time and expense. The relative informality of the present EEO process enables this.
If the complainant and agency reach resolution before an administrative judge need issue a determination, that may well be a successful case. An agency’s willingness to come to the table in good faith to settle with an employee who’s been discriminated against does not exist in a vacuum. Simple statistics, like the above-cited 1.7% figure, can mislead without holistic consideration. If one believes, as we do, that settling for the employee prior to an AJ decision does not indicate an unsuccessful case, then employees should not be stripped of their ability to request a hearing.
The proposed rule incorrectly assumes that if a case ends in settlement before the hearing, then that case did not need a hearing. However, the EEO process is not a closed system. We cannot assume that cases will continue to reach successful resolution prior to an administrative hearing in a system where hearings are no longer a possibility. The opposite is far more likely, in fact. Removing the prospect of administrative judge proceedings will likewise remove agency incentive to negotiate with employees in good faith and settle. In this sense, even cases that settle prior to a hearing still “need” a hearing.
Denying employees’ access to discovery
We are troubled by EEOC Chair Lucas’s characterization of the discovery period as “a second bite at the apple” for employees.[4] This may be a second bite at the apple for agencies, who have largely controlled the investigation and record to this point, but it is a first—and quite possibly only—bite at the apple for aggrieved employees.
In observing that over half of the complainants he sees are pro se, one administrative judge notes that hearings are a matter of “access to justice.”[5] The EEO process is designed for employees to navigate with or without representation. He further notes that, while an “adversarial legal process” and a “little Byzantine,” the EEO process is nonetheless quicker, cheaper, and on the whole more accessible than federal court. The key here is that the EEO process is cheaper and faster than federal court for federal employees—not the government or any one agency.
Particularly for pro se complainants—and again, the EEO system is designed to enable redress for unrepresented employees—the hearing is critical. ROIs are frequently insufficient. Not all employees have a private attorney to conduct their own discovery to supplement an insufficient record. If the agency investigation is conducted via questionnaires answered by people without adequate understanding of the questions asked, or if witness interviews lack follow-up questions, it is highly likely the evidentiary record will be insufficient—including for meritorious complaints.
The Commission claims that the evidence uncovered in discovery does not lead to fairer, more accurate outcomes. 91 FR 55691. Again, the EEO process is not a closed system. What reason would an agency have to resolve matters with an employee if there is little to no chance of discovery beyond its own investigation?
Prioritizing “efficiency” over due process
The rule references “efficiency” 49 times to justify undermining § 717. These appeals to efficiency are neither accurate nor appropriate. The resulting process is anything but efficient. Even as it restricts employees’ access to discovery, it would require employees to clear a heightened plausibility standard when filing their initial complaint. 91 FR 55695. Such drastic restrictions will certainly reduce the number of discrimination complaints and findings of agency liability. But it will not reduce the number of discrimination incidents. Annual spreadsheets may give the impression of progress, but will only move us further from a federal workplace free of unlawful discrimination.
The proposed plausibility standard is unfair and inappropriate. 91 FR 55695. Many employees with meritorious claims require agency-controlled evidence to prove their claim’s merit. ROIs frequently lack this evidence; deficiencies are not always intentional or malicious, but they do result in inadequate records. This is why employees’ access to discovery is critical.
It is simply not the case that meritorious complaints can be clearly divined based solely on the ROI, as the Commission expects. 91 FR 55692. In the proposed “targeted referral model,” an employee will require EEOC referral to access discovery. Id. The EEOC would determine whether “live testimony, credibility findings, targeted discovery, or other proceedings are necessary or efficient,” by consulting an inadequate record. Id. If there is sufficient evidence to determine merit, the case may pass a preliminary bar for further discovery. But if there is not sufficient evidence to determine that the case has merit, the employee will not be permitted discovery to complete the inadequate record.
The Commission’s vision for a quick and fair process has failed to convince. Prioritizing efficiency does not lend to fairness. Even the rule itself alleges that administrative judges ignore meritorious claims to—in the interests of efficiency—“prioritize easier closures.” 91 FR 55691. Such failure to execute Section 717’s intended purpose makes this proposed scheme categorically inefficient. This rulemaking, therefore, cannot be justified in accord with the Commission’s stated intent of efficiency. An engine that quickly consumes fuel without enabling the car to drive forward is not an efficient engine. It is effecting a process—fuel expenditure—but not the process it was designed for: driving. The Commission has proposed a redesigned engine that goes through gasoline with far more speed than before, but fails to move the car forward as intended.
In this rule, the Commission proposes to move discrimination complaints through a fast-moving but ultimately inaccessible and meaningless process. As a result, the EEOC will ensure speedy completion of a process. But it would not be completing the process it was delegated. The purpose of section 717 is to free the federal sector from discrimination against employees—not merely to rid the federal sector of EEO complaints. Because the proposed process would quickly accomplish a task but not the appropriate task, it is ineffective and therefore inefficient.
The Proposed Rule Inappropriately Positions Civil Court Action as an Acceptable Substitute for Accessible and Meaningful Administrative Review
A critical operative distinction between the EEO process and federal court is its accessibility. Litigation is costly—prohibitively so for many employees who experience discrimination. If would-be complainants cannot receive adequate review because of financial or other barriers, then discrimination in federal sector employment will not be rectified. Hence, Congress afforded federal employees accessible and meaningful review of their discrimination complaints with Section 717. And yet the Commission’s proposed revisions would turn this foundational intent on its head. The Rule states that it is not the purpose of the federal-sector EEO complaint process to be a replacement for civil court action. 91 FR 55693. What it proposes to do instead is position civil court action as a replacement for the Federal-sector EEO complaint process.
This proposed rule hinges upon a claim that the primary purpose of § 717 is to provide a more efficient and less burdensome alternative to court for EEO complaints, appealing to the authority of West to do so.[6] It states (perhaps cynically): “[If] this speedier, less formal process does not suit the needs of a particular complainant, they always retain the right to file a de novo civil action in Federal court.” 91 FR 55693.
This application of West—and indeed § 717—is highly questionable. In West, the Supreme Court addresses the question of whether the EEOC can award compensatory damages. The Respondent claimed that courts are the appropriate avenue for compensatory damages, not the administrative process. The Court disagreed and found that the EEOC is also empowered to award compensatory damages.
West does not support the NPRM’s conceit that the operative distinction between the administrative and judicial EEO processes is the degree of due process afforded, e.g. discovery. Close attention to the Court’s opinion in West as well as the authority cited therein regarding administrative exhaustion, Brown v. GSA, 425 U. S. 820 (1976), reinforces how misguided this approach is.[7]
In Brown, the Supreme Court held that both the legislative history and structure of the 1972 amendment confirm that Congress intended § 717’s EEO scheme to be “exclusive and pre-emptive.”[8] For the administrative process to preempt judicial review, it must be able to accomplish what the judicial review might accomplish. Hence, the Court’s finding in West that the EEOC, like the courts, must be fully empowered to award compensatory damages: holding otherwise would “undermine this remedial scheme” and “force into court matters that the EEOC might otherwise have resolved.” 527 U.S. at 219.
In other words, administrative remedies must not be sidestepped in favor of “complementary” judicial remedies. Judicial enforcement is a further level of appeal, not a presumptive remedy to supplement any systemic deficiencies in an inadequate system of administrative review. One avenue does not exist “merely to supplement” the other.[9] The Court rejected the notion that Congress intended to let the administrative EEO process serve as a “supplement” to a judicial process. Id. Should the administrative process be weakened relative to court action, then the Commission’s ability to eliminate Federal-sector employment discrimination would not only be “circumvented,” but “eliminated.”[10]
West held that the foundational purpose of § 717 is to eradicate discrimination in federal employment. This is enabled by a system which provides for dispute resolution within the administrative EEO process before pursuing judicial relief. To ascribe more authority to the courts than the EEOC would “undermine” § 717 by “forc[ing] into court matters that the EEOC might otherwise have resolved.” 527 U.S. at 218–219. The Court, here, is in line with Brown, wherein the Court compared the prospect of disempowering the Commission relative to the courts to Gresham’s law: dooming the federal EEO process to obsolescence by allowing it to devalue itself like bad currency: facially equal, but intrinsically less valuable.[11]
The federal EEO process preempts the judicial one (and not vice versa) for several reasons. Critically, it is a choice Congress made to further the purpose of § 717: eradicating discrimination from federal employment. Any subsidiary reason for the dispute resolution scheme is, ultimately, in service of that mission. The fact that administrative relief is a cheaper and less formal alternative to court action, for instance, is done in service of that mission. In West, the Court pulls from the legislative history to emphasize that Congress’ primary concerns for § 717 were to “help make victims whole,” “deter… intentional discrimination in the workplace,” and “provide appropriate remedies for intentional discrimination.” 527 U.S. at 219–220. As the pivotal concern was remedying discrimination, the law is far more protective of employees than agencies.[12]
Civil court litigation is a costly undertaking in every sense. Such burdens are felt most keenly by employees—not agencies. The administrative EEO process is the only viable option for a significant number of complainants. That is why that process must be at least as effective as the judicial option. Congress legislated it. The EEOC’s mission demands it.
This proposed rule positions the judicial remedy as an appropriate and adequate substitution for previously provided due process rights. Going yet further, it claims that if a case requires an independent hearing and discovery, then the federal EEO process is not the “appropriate avenue”: civil court action is. 91 FR 55693. Neither the referenced case law nor the statute itself supports such debilitation of the administrative process. And it certainly cannot be justified by appeals to budgetary constraints or ostensible “efficiency.”
The Proposed Rule Relies Upon Unsubstantiated Claims to Justify Eroding Federal-Sector EEO Protections
We question several unsupported assumptions underpinning this proposed rule:
- That the EEOC has the ability to reliably cull the meritless claims from meritorious ones;
- That agencies will hold themselves accountable for EEO compliance and conduct independent investigations;
- That civil action rights are an adequate substitute for employees’ administrative process rights;
- That the majority of complaints before Administrative Judges lack merit; and, most prominently,
- That the primary purpose of § 717 is not to remedy discrimination in the federal sector, but to make the process quicker, less costly, less thorough to the benefit of the government, not employees.
The Commission fails to substantiate its claim that the majority of complaints can be resolved “fairly and accurately” by the accused agency’s own investigation. 91 FR 55691. It claims that administrative judge proceedings are ineffective, but neglects to address the critical guardrails they provide. It stacks the odds even higher against pro se employees while changing attorney fee standards to make it even more challenging for employees to exercise their right to legal representation. The data presented to justify the ostensible ineffectiveness of pre-complaint counseling and administrative judge hearing procedures is misleading. This rule cites frivolous complaints filed by employees hoping only to avoid personnel action, but fails to provide evidence of such a scourge.
The claims of the EEOC’s strained resources are supported. To that end, however, budgetary considerations are not sufficient reason for an executive agency to regulate itself into obsolescence, directly contrary to congressional design.
The Commission has failed to adequately address multiple reliance interests harmed in the proposed rule. Agency APA obligations cannot be outsourced. They are not satisfied by requesting suggestions from the public for feasible alternatives in a NPRM with an abbreviated comment period—particularly not after denying Commissioner Kotagal’s motions for both a work group and an extended comment period.[13] In failing to adequately consider the welfare of federal employees, the Commission has failed to justify this rulemaking as anything other than an abuse of discretion.
EEOC’s foundational mission is not to make itself budgetarily efficient. Its mission is to protect employees, including federal employees, from unlawful discrimination. Congress established the EEOC. The EEOC does not have the authority to undo itself in all but name.
The core mission of the EEOC is inefficient. It is costly. It takes time, it takes resources. It involves friction. Justice often does. The point of § 717 is to ensure that this burden is not born so heavily by employees that justice is inaccessible. Congress allocated resources and authority to the EEOC because the U.S. government and its people have an interest in a federal workplace free of discrimination. Freedom from discrimination is a right afforded to all federal employees, not only those who can afford to retain private legal counsel and proceed through protracted litigation in civil court.
Discussions leading up to the Equal Employment Opportunities Enforcement Act of 1971 echoed a common refrain: the EEOC is a watchdog with no teeth.[14] Some might argue that this proposed rule is not a matter of teeth, but of a watchdog guarding the thieves from the family. Or, perhaps less perniciously, but equally damaging: the watchdog is no longer concerned with guarding anything at all. Its only concern is that when the house is robbed—and robbed it shall be—it is done efficiently.
A nonpartisan, merit-based civil service must be governed by both efficiency and fairness, not efficiency at fairness’ expense. As attorneys, it has been our privilege to represent thousands of federal employees in their EEO matters. We have advocated for our clients at every stage of their EEO complaints: both in the administrative process and in court when necessary. We have personally witnessed how, more often than not, filing an EEO complaint is anything but spurious. It is a last resort. How many employment attorneys have heard a client say, I just don’t want it to happen to someone else?
“Hearing requests” and “findings of discrimination” are not just items on an EEO data spreadsheet. These are real people taking substantial risks because they recognize that a federal government free from unlawful discrimination is not only their right as a federal employee, but their duty as a federal civil servant to enact.
We will continue to support our clients in their pursuit of a federal workplace free from unlawful discrimination. We urge the Commission to support all federal employees, represented or not, by rescinding this rule.
Tully Rinckey PLLC
September 28, 2026
[1] Andrea R. Lucas, Chair, U.S. Equal Emp. Opportunity Comm’n, Statement Regarding Notice of Proposed Rulemaking to Revise Federal Sector EEO Complaint Regulations (29 CFR part 1614) (Aug. 26, 2026), https://www.linkedin.com/posts/andrea-lucas-a5b27513_lucas-statement-ugcPost-7498440371321044992-eLYU/.
[2] “The proposed revision to § 1614.108(c)(3) would preserve the existing duty to cooperate with an EEO investigation but would restate the consequences of noncooperation in a more tailored and legally precise way. Current § 1614.108(c)(3) permits an investigator to note that, when a complainant, agency, or agency employee fails without good cause to respond fully and timely to investigative requests, the decisionmaker or the Commission may draw adverse inferences, deem matters established, exclude evidence, issue a decision fully or partially in favor of the opposing party, or take other appropriate action. The proposed rule would replace that formulation with language allowing the investigator to document the failure and allowing the agency or Commission to consider the failure in evaluating the evidence, draw appropriate nonmonetary evidentiary inferences, exclude untimely produced evidence, or take other nonmonetary procedural or evidentiary action consistent with part 1614 and applicable law.” 91 FR 55696.
[3] “The 2-3 percent figure cited for the rate of discrimination findings is a statistic that only tells part of the story. The Equal Employment Opportunity Commission (EEOC) strongly encourages early resolution of cases both before and after a formal complaint is filed. Of the 17,124 complaints closed in Fiscal Year (FY) 2010, 29 percent were resolved through settlements prior to a formal determination. Many of these resolutions contained favorable outcomes for the complainant, including monetary and non-monetary benefits. Additionally, in FY 2010, of 40,563 instances of pre-complaint counseling, 55 percent of potential complaints were resolved by settlement or withdrawal before a complaint was formally filed.” U.S. Equal Emp. Opportunity Comm’n, What You Should Know: Myths and Facts About the Federal Sector EEO Process, (last visited Sept. 10, 2026), https://www.eeoc.gov/wysk/what-you-should-know-myths-and-facts-about-federal-sector-eeo-process.
[4] “Too often, a federal employee’s request for a hearing isn’t just requesting “a” hearing; instead, it is opening Pandora’s box to an additional discovery process that gives employees a second bite at the apple after their federal agency employer has already completed an investigation, but also may snare both employee and employer in a months- or years-long purgatory of a process.” Andrea R. Lucas, Chair, U.S. Equal Emp. Opportunity Comm’n, Statement Regarding Notice of Proposed Rulemaking to Revise Federal Sector EEO Complaint Regulations (29 CFR part 1614) (Aug. 26, 2026), https://www.linkedin.com/posts/andrea-lucas-a5b27513_lucas-statement-ugcPost-7498440371321044992-eLYU/ .
[5] Andrew Winston in A VIEW FROM THE BENCH: What EEOC Judges wish you knew…, YouTube (May 2021), https://www.youtube.com/watch?v=anhE5VeUHs0&t=5s. (8:26). Andrew Winston began serving as an administrative judge with the Denver field office of the Equal Employment Opportunity Commission in 2015.
[6] “The purpose of the Federal-sector EEO complaint process is to ‘encourag[e] quicker, less formal, and less expensive resolution of disputes within the Federal Government and outside of court.’ West v. Gibson, 527 U.S. 212, 219 (1999). The Federal-sector EEO complaint process, in its current form, strays from this purpose.” 91 FR 55691.
[7] “Section 717’s general purpose is to remedy discrimination in federal employment. It does so in part by creating a dispute resolution system that requires a complaining party to pursue administrative relief prior to court action, thereby encouraging quicker, less formal, and less expensive resolution of disputes within the Federal Government and outside of court. See 42 U. S. C. § 2000e–16(c)(court action permitted only where complainant disagrees with final agency disposition or, if complainant pursued discretionary appeal to EEOC, with EEOC disposition; or if either agency or EEOC disposition is delayed); Brown v. GSA, 425 U. S. 820, 833 (1976) (discussing § 717’s ‘rigorous administrative exhaustion requirements’); see also 29 CFR § 1614.105(a) (1998) (requiring complainant initially to notify agency and make effort to resolve matter informally); § 1614.106(d)(2) (requiring agency investigation prior to EEOC consideration). To deny that an EEOC compensatory damages award is, statutorily speaking, “appropriate” would undermine this remedial scheme. It would force into court matters that the EEOC might otherwise have resolved.” West v. Gibson, 527 U.S. 212, 218–219 (1999).
[8] “This unambiguous congressional perception seems to indicate that the congressional intent in 1972 was to create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.” Brown v. GSA, 425 U.S. 820, 829 (1976).
[9] “The balance, completeness, and structural integrity of § 717 are inconsistent with the petitioner’s contention that the judicial remedy afforded by § 717(c) was designed merely to supplement other putative judicial relief. His view fails, in our estimation, to accord due weight to the fact that unlike these other supposed remedies, § 717 does not contemplate merely judicial relief. Rather, it provides for a careful blend of administrative and judicial enforcement powers. Under the petitioner’s theory, by perverse operation of a type of Gresham’s law, § 717, with its rigorous administrative exhaustion requirements and time limitations, would be driven out of currency were immediate access to the courts under other, less demanding statutes permissible. The crucial administrative role that each agency together with the Civil Service Commission was given by Congress in the eradication of employment discrimination would be eliminated ‘by the simple expedient of putting a different label on [the] pleadings.’ It would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.” Id. at 832–833; Internal citations removed.
[10] Id. at 832–833; Internal citations removed. We note, here, that “Commission” refers to the Civil Service Commission, whose authority and responsibilities were transferred to the EEOC. Thus, “Commission” appropriately translates and applies to the EEOC in this instance.
[11] See Brown v. GSA, 425 U.S. 820, 832–833 (1976).
[12] “The history of the jury trial provision suggests that Congress saw the provision primarily as a benefit to complaining parties, not to the Government…. The fact that Congress permits an employee to file a complaint in court, but forbids the agency to challenge an adverse EEOC decision in court, also suggests that Congress was not inordinately and unusually concerned with invoking special judicial safeguards to protect the Government.” West v. Gibson, 527 U.S. 212, 221–222 (1999).
[13] See Commissioner Kotagal’s unsupported motions: “Prior efforts focused on major changes to the federal sector regulations, like the 1999 and 2012 final rules, were based on the recommendation of federal sector work groups established to evaluate and improve the EEO process. No such work group existed here. First, I move to postpone consideration of these changes until the Commission can form a federal sector work group to allow federal employees, EEO practitioners, researchers, advocates, and others to prepare evidence-based recommendations for reforming the federal sector process;” and, “Since these changes will not be informed by a federal sector work group, they should, at the very least, be informed by public input. Although this NPRM is 150 pages overhauling the entire federal sector process and raising complex questions, the public will have just 30 days to comment. Prior changes to these regulations, including proposed changes in 1998, 2009, 2019, and 2022, provided 60-day comment periods. The outcome of this process will impact the rights of over 2 million federal employees. Accordingly, I move that the notice and comment period be extended to 60 days to allow the public sufficient time to weigh in.” Commissioner Kalpana Kotagal, Second Round of Discussion, in U.S. Equal Emp. Opportunity Comm’n, Meeting of August 26, 2026 – Transcript (Aug. 26, 2026), https://www.eeoc.gov/meetings/notice-open-commission-meeting-August-26/transcript.
[14] See, for example, the Congressional Record of the Sept. 16, 1971 House discussion on the Equal Employment Opportunities Enforcement Act of 1971; Rep. Bella Abzug (D-N.Y.) notes, “The sad fact is that despite the efforts of The Equal Employment Opportunity Commission and despite the Civil Rights Act of 1964, women and minorities can still be characterized and minorities can still be characterized as castoffs of the American economy. Both groups suffer consistently from employment discrimination which is blatant, pervasive, and in flagrant violation of Federal law. One major reason that this discrimination persists is that the Equal Employment Opportunity Commission, charged with ending employment discrimination in accordance with the provision of Title VII of the Civil Rights Act of 1961, has been a watchdog without teeth.” S. Comm. on Labor and Public Welfare, 92d Cong., Legislative History of the Equal Employment Opportunity Act of 1972, at 274 (Comm. Print 1972). See also id. at 302, 561, 561.
