WASHINGTON, D.C. (Bloomberg Law) — The EEOC’s planned overhaul of the discrimination complaint process for federal workers would create new administrative obstacles for employees and ultimately steer them toward federal court instead.
The Equal Employment Opportunity Commission plan would scrap the informal counseling process for federal workers and the right to a hearing before an EEOC judge. All investigations would instead end in a final agency decision, and administrative class complaints would be eliminated.
The proposal is one of many Trump administration attacks on the civil service, some of which have discouraged workers’ claims by driving them out of the administrative process and toward more expensive litigation.
“This is a huge overhaul,” said Stephanie Rapp-Tully, a partner at Tully Rinckey PLLC. “It would substantially change the avenues of recourse federal employees facing discrimination can seek and would be a burden, frankly, on agencies, on federal employees, but then also on the federal court system.”
An EEOC spokesperson declined to comment on the planned changes.
Government workers who allege bias would no longer receive traditional counseling at their agency or have the ability to request mediation as initial options, under the proposal first reported on by Bloomberg Law and expected to appear in the Federal Register as a proposed rule in September.
During the informal counseling, an EEO representative relays the worker’s claims to agency management in an attempt to resolve the dispute early. Or, under the alternative dispute resolution program, a neutral mediator meets with the parties to discuss solutions.
“The intent behind having an informal process is to try and hopefully give the employee an opportunity to be heard,” said April Fuller, a partner at Roberts Labor Law and Consulting LLC, in Columbia, Md. “Many EEO complaints can be resolved with the parties just sitting down and talking, which obviously saves a huge amount of resources.”
People Get ‘Scared’
There were approximately 33,500 informal counseling sessions in fiscal year 2021, according to the EEOC’s latest available federal workforce annual report. About half those cases were withdrawn before a complaint was filed, and only 36.5 % led to a formal complaint filing.
Without informal counseling, disputes that would otherwise be resolved through a conversation would instead lead to a formal investigation, which is more costly and time-consuming, said Rushab Sanghvi, general counsel for the American Federation of Government Employees.
As part of the probe, an EEO investigator interviews employees under threat of perjury and compiles evidence, affidavits, emails, and other documents into a report that can reach thousands of pages, Fuller said.
“Things get really serious really fast,” Fuller said. “People get scared.”
“Skipping that informal stage means that the agencies are going to be doing more investigations,” she added. “Now, whether the investigations will continue to be as thorough as they are, I don’t know, because they’re going to have a lot more of them now if they cut out the informal stage.”
Following the probes, the overhaul would end the right for government workers to request a hearing before an administrative law judge, which workers-side attorneys called the most concerning change. An EEOC Office of Federal Sector, currently known as the Office of Federal Operations, would have sole power to call an ALJ hearing.
Currently, once a federal sector bias investigation is complete, the employee receives notice informing them of their right to request either the hearing or a final agency decision.
All investigations would end in a final agency decision on whether discrimination occurred.
