Federal employees would see major changes when filing discrimination complaints against their agencies, according to a new proposal from the Equal Employment Opportunity Commission.

The EEOC’s Republican majority voted 2-1 on Wednesday to adopt a notice of proposed rulemaking, seeking to eliminate or revise several key steps of the federal sector complaint process.

If implemented, federal employees who file complaints would no longer be guaranteed a hearing with an EEOC administrative judge. Instead, hearings would be granted on a case-by-case basis.

Federal employees with similar allegations of discrimination would also be barred from having their cases grouped into class-action complaints at EEOC.

And the proposal would remove an initial pre-complaint counseling stage of the federal sector process, typically meant to inform complainants of their rights and the EEO process overall.

EEOC Chairwoman Andrea Lucas and Commissioner Brittany Bull Panuccio, who voted in favor of the proposal, said the changes are meant to streamline and improve the process for the federal sector.

During a commission hearing Wednesday morning, Lucas described the current setup as lengthy and complex. She pointed to data showing that complaint cases, where EEOC ultimately found that discrimination occurred, faced an average wait time of 2.63 years between a hearing request and being granted relief from an administrative judge.

“I also stress that this is just the average. Many victims of discrimination end up waiting even longer before receiving decisions from our administrative judges granting them relief,” Lucas said. “Why does it take so long? Why is the wait even longer for those with the most meritorious claims? The heightened formality of the administrative judge proceedings is a likely contributor to the lengthy processing times.”

“The goal should be a process that resolves claims thoroughly, fairly and in a reasonable amount of time,” Panuccio said. “That means giving agencies workable procedures to investigate and decide complaints, holding the process accountable to meaningful deadlines and ensuring that the commission’s resources are focused where they are most useful.”

Kalpana Kotagal, the commission’s sole Democratic board member, voted against the proposal. While acknowledging that reforms are needed, she said the proposal would create an unfair process for federal employees.

“There is certainly room for improvement,” Kotagal said during the hearing. “Unfortunately, I believe the proposed changes will only exacerbate problems. The EEOC’s proposal will make it harder for federal employees to challenge discrimination and easier for agencies to evade responsibility.”

Kotagal specifically challenged the commission’s proposed removal of administrative class complaints in the federal sector process, calling the decision “unfair and short-sighted.”

“Today’s proposal considers whether to turn back time, knee-capping workers’ ability to challenge systemic discrimination,” Kotagal said. “It will limit relief for employees who would otherwise be class members and who instead must pursue individual relief to challenge widespread issues. We can expect that many workers will not be able to do so.”

Lucas, however, raised concerns about the current effectiveness of the class complaint process for the federal sector.

“I have witnessed multiple egregious instances when EEOC decisionmakers have misapplied even basic class procedures or have misapplied substantive law against an entire class,” she said. “These mistakes can result in meritless class complaints being unnecessarily prolonged for years and even decades.”

Kotagal also questioned the decision not to include in the proposal a larger extension of the current timeframe for federal employees to file a complaint. While most private sector employees have 300 days to submit a discrimination charge against an employer, federal employees have just 45 days.

“Many workers won’t know about these stringent timeframes or have processed what’s happening to them before they are expected to file,” Kotagal said. “This is a problem now, and it won’t be addressed by the proposal the commission sets forth today.”

The challenges identified in the EEOC’s federal sector complaint process are not new. In 2015, EEOC issued an advance notice of proposed rulemaking, soliciting public feedback on how to improve the process to make it more efficient, effective and “user-friendly.” At the time, EEOC received 96 comments that described the need for process reforms, but the suggested changes were never finalized.

During Wednesday’s hearing, Kotagal motioned to postpone the EEOC’s proposal and instead establish a federal sector working group to research and assemble recommendations for reform. She also motioned to extend the public comment period to 60 days rather than 30 days. Both were struck down.

Once EEOC’s notice of proposed rulemaking is published to the Federal Register, there will be a 30-day window for the commission to solicit public comments on the changes.

“As always, the commission will carefully consider all public comments before issuing any final rule,” Lucas said in a statement Wednesday. “I look forward to continued dialogue as we work to ensure that the federal sector EEO process fully serves its essential mission: protecting the rights of all federal employees and applicants to work free from unlawful discrimination.”

But Chai Feldblum, a former Democratic EEOC commissioner from 2010–2018, took issue with the short timeframe to review the 150-page proposal.

“To me, it is outrageous to say that you want to fix the federal sector process to make it better for federal employees and not to extend that time deadline,” Feldblum, currently president of the EEO Leaders advocacy organization, said in an interview with Federal News Network. “The irony of stating repeatedly during the meeting that they really want to hear from the public about ways to set up the system and then rejecting a request for 60 days to comment and only providing 30 days — it speaks volumes.”

In response to the commission’s proposal, the American Federation of Government Employees warned that the process changes would make it less likely for federal employees and job applicants to win relief in discrimination cases. Removing the opportunity to group similar allegations into class complaints would make it harder to detect patterns of discrimination at agencies, the union said.

“The EEOC is undermining its legal responsibility and obligation to keep our federal workplaces free from discrimination and retaliation by proposing these radical changes to the existing complaint process,” AFGE National President Everett Kelley said. “Congress has repeatedly said it wants the federal government to be a model employer, and these proposed changes will make that endeavor more difficult to attain.”

Under the Trump administration, EEOC has taken other significant steps to change its internal operations, some of which directly affect the federal sector. In June, for instance, the commission lifted decades-old requirements for agencies to report federal employee demographic data.

And in July, AFGE filed a lawsuit against EEOC, alleging that the commission unlawfully issued a blanket suspension last year on all work involving class action complaints in the federal sector.

Earlier this month, EEOC also voted to rescind data collection requirements for workforce demographics in the private sector, similarly setting a 30-day public comment period for the proposal before its final approval.

“There is a very deliberate trend at the EEOC today to push radical changes without adequate consideration for public feedback,” Feldblum said. “There is a deliberate effort to dismantle as much as possible, as quickly as possible — and that is truly unfortunate.”

Editor’s Note: This story was updated Thursday morning to correct an error regarding the timeframe for filing a federal sector EEO complaint.

If you would like to contact this reporter about recent changes in the federal government, please email drew.friedman@federalnewsnetwork.com or reach out on Signal at drewfriedman.11

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