The EEOC's Federal Complaint Overhaul: No Automatic Hearing, No Counselor Step, No Class Complaints

Bottom line

962 days. That, by the EEOC’s count, is how long federal employees who proved discrimination waited on average for a decision from an EEOC administrative judge in fiscal 2021 through 2025 ^[1]. The commission’s answer is to end the automatic hearing, the mandatory counselor step and administrative class complaints. Comments closed September 28 ^[1]. Supporters say the change would speed decisions; opponents say it would leave employees to be judged mainly by the agencies they are accusing ^{[2, 5]}.

What happened

The EEOC voted on August 26 to propose a rewrite of 29 CFR part 1614, the rules for discrimination complaints by federal employees and applicants ^[2]. The vote was 2-1, with Commissioner Kalpana Kotagal dissenting ^{[3, 5]}. The proposal ran in the Federal Register on August 28 as FR Doc. 2026-17641, with a 30-day comment period ^[1].

How the process works now. An employee must contact an agency EEO counselor within 45 days of the action complained of, then may file a formal complaint ^[3]. The agency has 180 days to investigate. After that, the employee may ask for a hearing before an EEOC administrative judge or take an immediate final agency decision ^[3]. A judge’s decision is due within 180 days of receiving the file, the agency has 40 days to accept or reject it, and either path can end in an appeal to the EEOC within 30 days ^[3].

What would change. The proposal makes six main moves ^[1]:

• No counselor step. Section 1614.105 would be removed. Complaints would be filed directly with the agency within 60 days of the matter alleged, or of a personnel action’s effective date ^[1]. Agencies would instead offer “appropriate and effective pre-complaint technical assistance,” a phrase the CRS notes the proposal does not define ^{[1, 3]}.
• A pleading standard. A complaint would need enough facts to state a claim “plausible on its face,” or it could be dismissed ^[1].
• Agency decides first. The agency would investigate within 135 days, or 180 days for complaints filed before January 1, 2028. Parties get 15 days to add evidence, and the final agency decision is due 30 days after the record closes ^[1].
• Hearings only on referral. On appeal, either side may ask the EEOC to send the case to an administrative judge. Granting it would be discretionary, for cases where a hearing is “necessary or efficient,” such as genuine disputes of fact or credibility ^[1]. The judge would recommend; the commission would decide, reviewing de novo ^{[1, 3]}. Agencies could no longer appeal their own decisions, and a few could petition to run internal hearings, which the EEOC expects to be rare ^[1].
• No class complaints. Administrative class adjudication would end. A complainant could assert a putative class claim only to exhaust it, and related individual complaints could be processed jointly ^[1].
• Fees and Cummings Act duties. Attorney fee rates would be tied to market rates for comparable EEO work, with outside matrices like the Laffey Matrix generally not accepted ^[1]. Agencies would post findings of discrimination within 90 days for at least a year, report on discipline, and have their EEO director report directly to the agency head ^[1].

The commission’s position. The EEOC says counseling settled about 385 of roughly 35,618 matters a year from 2017 to 2021, about 1 percent, while agency ADR programs settled about 11 percent ^[1]. It says it received an average of 7,514 hearing requests a year from fiscal 2017 through 2025, held about 304 hearings a year, and found agency liability in about 128 ^[1]. Its preamble calls judge proceedings “too long, too formal, and too adversarial” ^[1]. On class cases, it says its process “has not demonstrated the resources, institutional structure, or specialized capability to adjudicate large classes effectively” ^[1]. Chair Andrea Lucas said: “But the current system is deeply broken. It fails both federal employees and their agency employers” ^[2].

The critics’ position. In a September 28 letter, 75 congressional Democrats asked the EEOC to withdraw the proposal, writing that it “could have the effect of making EEO claims slower on top of stripping federal employees of key rights,” according to Federal News Network ^[5]. The National Women’s Law Center, leading a coalition, wrote that the rule “would make it harder for federal employees to enforce their rights under federal antidiscrimination law” ^[4]. It objected that complaints would face a federal-court plausibility standard while losing the counseling that helps employees frame them, and noted that past revisions of these rules allowed 60 days for comment ^[4]. AFGE called the 30-day window “plainly unreasonable for such a complex rule” ^[5]. Commissioner Kotagal said the proposal would make it “easier for agencies to evade responsibility,” as quoted by the CRS ^[3].

What it means for you

Employees with a complaint already filed. The EEOC says the proposal “is prospective and would not affect complaints currently being processed” ^[2]. The proposed regulatory text does not spell out the transition, so that press release sentence is the only statement on it ^{[1, 2]}.

Employees thinking about a complaint now. The current rules still govern. That means the 45-day counselor contact deadline still applies ^[3]. A proposed 60-day window does not help anyone filing today.

Employees after a final rule. The changes that matter most in practice:

• You would write your own complaint without a counselor. It would need specific facts, not only labels or conclusions, to survive the plausibility screen ^{[1, 4]}.
• Your first decision would come from your own agency. A hearing would depend on the EEOC agreeing, on appeal, that one is needed ^[1].
• Your right to sue does not change. Under current law you may file in court 90 days after final action, or 180 days after filing a complaint or appeal with no decision ^[3]. The proposal says it would not alter those rights ^[1].

Employees in group claims. Systemic claims would move to federal court. AFGE is separately suing the EEOC over what it says was a blanket suspension of federal class complaints last year ^[5].

Employees with mixed cases. For actions appealable to the MSPB, the proposal consolidates the mixed-case rules. If the MSPB dismisses for lack of jurisdiction, you would have 30 days to return to the EEO process ^[1]. The MSPB’s own penalty-review rule, covered in the September 3 memo, changes how the Board reviews penalties in misconduct appeals filed after October 5.

Supervisors and EEO staff. Agencies would carry more of the decision work under firm deadlines, and would have to notify the complainant in writing when they miss one ^[1]. The CRS notes reports of staff cuts at agency EEO offices and at the EEOC ^[3].

Contractors. Part 1614 covers federal employees and applicants ^[1]. The EEOC says the proposal does not touch its private-sector process ^[2].

Questions you’re probably asking

Will federal employees still get a hearing before an EEOC administrative judge?

Not automatically. Under the proposal, a hearing would happen only if the EEOC, on appeal from the agency’s decision, refers the case to a judge because a hearing is necessary or efficient ^{[1, 2]}.

Does the EEOC proposal change the 45-day deadline to contact an EEO counselor?

It would replace it. Counseling would no longer be required, and a complaint would go straight to the agency within 60 days of the matter complained of ^{[1, 3]}.

Does the new EEOC federal sector rule apply to my complaint that is already filed?

The EEOC says the proposal is prospective and would not affect complaints currently being processed ^[2]. It is also still a proposal, and comments closed September 28 ^{[1, 5]}.

Can federal employees still file a class complaint with the EEOC?

Not under the proposal. A complainant could assert a class claim only to exhaust it before going to court, and agencies could jointly process related individual complaints ^{[1, 3]}.

Can I still sue in federal court if the EEOC limits hearings?

Yes. The proposal says it would not alter statutory civil action rights, and filing suit ends EEOC processing ^[1].

What I’m watching

• The final rule. The EEOC says it will review all comments before deciding ^[2]. No date has been set.
• January 1, 2028: the date the proposal sets for the 135-day investigation limit to replace the 180-day introductory period ^[1].
• AFGE’s class complaint lawsuit, which turns on the same question the rule would settle ^[5].