WASHINGTON, D.C. (Law360) — Advocates for government employees are sounding the alarm on the U.S. Equal Employment Opportunity Commission’s proposed overhaul of the process by which federal workers bring discrimination complaints, arguing it would restrict workers’ access to justice and burden the system further.
The EEOC is currently taking public input on a draft plan to dramatically reshape the rules governing the workplace discrimination complaint process for federal employees and applicants. The agency, which has suggested the elimination of several key steps within the multiphase schema, positioned its proposal as a way to make the process “quicker, simpler, and more effective.”
Among other significant updates, the agency is proposing to rescind a requirement mandating that employees meet with an equal employment opportunity counselor ahead of filing a formal complaint to discuss their rights and the procedures, as well as federal workers’ right to have their case reviewed by an EEOC administrative judge. The EEOC is also seeking to do away with workers’ ability to bring class wide claims within the federal sector process.
According to the EEOC’s chair, Andrea Lucas, the revamp will allow “people to get answers quickly and without unnecessary hassle” while retaining “all the important protections against employment discrimination in federal workplaces.”
Lawyers and organizations that advocate for federal sector workers disagree, telling Law360 that the proposal weakens crucial safeguards by eliminating employees’ access to information about their rights, as well as their ability to get their case before a neutral arbiter and challenge systemic problems via a class wide mechanism.
Among the critics is the American Federation of Government Employees, which represents more than 800,000 federal and D.C. government workers. Rushab Sanghvi, the AFGE’s general counsel, told Law360 that the EEOC’s efficiency-focused rationale is a smokescreen.
“It’s pretty clear to us that the goal of this is not to increase efficiency, not to save taxpayer funds,” Sanghvi said. “The goal of this is to eliminate the rights of federal employees, to make it harder for them to report and to get resolution for discrimination in the workplace.”
Michael Fallings, chair of the labor and employment practice group at Tully Rinckey PLLC, said the proposal will be harmful to the public sector workforce.
“Does it make it worse for employees? Yes, it does,” said Fallings, who litigates cases on behalf of federal workers. “I also think it will have impacts that the government is not even thinking about.”
Under the current process — set out in Part 1614 of Title 29 in the Code of Federal Regulations — government workers planning to file a discrimination complaint must first contact an equal employment opportunity counselor at their agency within 45 days of the alleged misconduct. At this stage, the counselors provide information to the worker about how the federal sector EEO process works, including time frames and appeal procedures, and try to informally resolve the matter.
If the matter isn’t resolved at this phase, they can file a formal complaint, and if the filing isn’t dismissed for a procedural reason, the employing federal agency has 180 days to conduct its investigation.
Once that deadline passes, employees have the right to request a hearing and litigate their complaints before an EEOC administrative judge, or they can petition for a final decision from their employing agency once the probe wraps. If they take the latter route, they have the option to appeal the result to the EEOC.
Under the new proposed rule — which the EEOC published in the Federal Register on Aug. 28 — the commission is looking to do away with mandatory pre-complaint counseling, as well as public sector employees’ right to have an EEOC judge review their case after that 180-day mark. These changes would make adjudication by the employing agency the core mechanism to resolving complaints.
Workers would have the option to appeal the employing agency’s decision to the EEOC, which would have the discretion to decide if a hearing is warranted, under the draft plan.
The EEOC is also proposing to eliminate the administrative procedure for federal employees to file class complaints, although government workers could still pursue their claims on a class wide basis in federal court following the conclusion of the public sector process.
The planned rework was greenlit by Lucas, an appointee of President Donald Trump, and her fellow Republican appointee, Brittany Panuccio, during a vote held at an Aug. 26 agency meeting. Lone Democratic Commissioner Kalpana Kotagal vehemently opposed the proposed overhaul, writing in a public statement that it is part of the Trump administration’s campaign to penalize its workforce.
“At the EEOC’s behest, the fox will continue to guard the henhouse with even fewer protections for workers, and with federal employees,and the American people, standing to lose,” Kotagal said.
While she made clear she also has qualms with the current system — acknowledging there is “room for improvement” — Kotagal said the planned updates will worsen the existing issues.
Lucas countered during the hearing that Title VII of the Civil Rights Act, the cornerstone civil rights statute that created the EEOC, established the federal agencies as the primary evaluators of internal discrimination complaints. The mechanisms the EEOC is rethinking are regulatory creations that the commission is within its authority to adjust, Lucas said.
In the 150-page Notice of Proposed Rulemaking, the EEOC explained that scaling back its involvement in federal workers’ cases —leaving the bulk of the decision-making to the employing agencies — will lead to more “expeditious results.”
According to the NPRM, the pre-complaint counseling process is ineffective, and the EEOC said it is considering foreclosing the class avenue because its own administrative process “has not demonstrated the resources, institutional structure, or specialized capability to adjudicate large classes effectively.”
Fallings, of Tully Rinckey, disagreed that the informal, early stage counseling process should be sunsetted, as he said it helps screen outfilings that don’t belong in the EEO system and give workers an outlet that they might not otherwise have.
“The pre-complaint stage helps filter out complaints that aren’t really EEO complaints and give employees an avenue to discuss their concerns that some agencies don’t make available to employees,” Fallings said.
Bypassing this step will add more strain — not less — to an overburdened pipeline, he said.
“It’s going to lead to an increase in formal complaints that are filed, and an increase in final agency decisions that have to be issued,” Fallings said. “So they’ll probably need to employ more people.”
