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You are here: Home / Federal Employment / The EEOC is proposing to upend the EEO complaint process

Aug 28, 2026

The EEOC is proposing to upend the EEO complaint process

The Equal Employment Opportunity Commission recently voted in favor of proposing new regulations that would completely change the process available to federal employees pursuing discrimination complaints against employing agencies (referred to as “EEO complaints”). The proposed rule was published on Friday, August 28, 2026, in the Federal Register, and allows for a 30-day period for anyone from the public to submit comments to the proposed rule.

You can read the Proposed Rule at the following website: https://www.federalregister.gov/documents/2026/08/28/2026-17641/federal-sector-equal-employment-opportunity

While the EEO complaint process has long been troubled by inefficiencies, the proposed rule appears to be an extreme way of addressing those inefficiencies by proposing to eliminate many parts of the process that are beneficial to “complainants” (the employees filing discrimination complaints) instead of focusing on fixing the parts of the process that are largely responsible for the inefficiencies.

For example, it is true that many EEO complaints do not settle early on in the counseling stage of the EEO complaint process. This is largely due to agencies rarely offering good-faith, reasonable settlement terms at the counseling stage. At the counseling stage of the EEO process, employing agencies oftentimes instead insist that, if the employee wants substantive relief for their discrimination complaint, the employee will have to take their complaint all the way through litigation. Rather than providing agencies with additional training or staffing to be able to better assess the merits of an EEO complaint and to better be able to mediate and make settlement offers in good faith during the counseling stage, the proposed rule proposes to eliminate the counseling stage in its entirety, essentially forcing employees into litigation from the very beginning of the EEO complaint process.

Similarly, rather than equipping EEOC federal sector hearings offices with more resources and staffing to more efficiently be able to manage and process the thousands of hearing requests they receive, the proposed rule guts the hearing process, rerouting complainants to the employing agency who their EEO complaint is against to issue a decision on their EEO complaint (referred to as a “Final Agency Decision” or “Final Action”) before the complainant can request a hearing before an Administrative Judge of the EEOC.  Even then, if the proposed rule is implemented, complainants may not even be given the right to request a hearing before an EEOC Administrative Judge.

Whereas the current process that has been in place for many years empowers the complainant to be able to make their own choice whether to file a hearing request, the proposed rule only allows employees to make that choice if the EEOC decides, in the EEOC’s own discretion, whether to allow the employee that choice. This creates an obvious concern that, if the EEOC continues to be understaffed with limited resources, the EEOC may in its discretion opt not to allow a complainant to file a hearing request – not because the employee has a bad case, but in order to alleviate the workload within the EEOC federal sector hearings process.

The proposed rule would also gut the Discovery process that is a current part of the hearing stage, instead relying on whatever evidence was formulated by the Agency in the agency-run investigation of a federal employee’s EEO complaint. While Discovery allows for an opportunity to retrieve relevant evidence that was not included in the Agency’s investigation of an EEO complaint, under the proposed rule, an employee’s right to Discovery would be wholly at the discretion of an EEOC Administrative Judge, and would not be available to employees at all who, as discussed above, are not referred to a hearing by the EEOC.

The comment period to comment on the Proposed Rule is open until September 28, 2026.  Commenting is open to everyone, whether you are a federal employee or not. If you are interested in advocating for a more fair, empowering EEO complaint process for federal employees than the one proposed, one simple way to do so is by commenting your opposition to the Proposed Rule. Comments can be entered at the following website: https://www.regulations.gov/commenton/EEOC_FRDOC_0001-0365

Categories: Federal Employment Tags: EEO complaint, EEOC, Proposed Rule

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