SUPPLEMENTARY INFORMATION:

I. Background

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) administers and enforces the Federal-sector equal employment opportunity (EEO) complaint process under section 717 of title VII of the Civil Rights Act of 1964, as amended, and related statutes prohibiting discrimination in employment. EEOC regulations at part 1614 of title 29 of the Code of Federal Regulations currently govern the processing and adjudication of EEO complaints filed by Federal employees and applicants. The regulations at part 1614 also establish standards for agency EEO programs.

The Federal-sector EEO complaint process has roots long predating current part 1614. Title VII, as originally enacted in 1964, did not apply to the Federal government. At the time, EEO in the Federal sector was addressed through Executive Order, as it had been for many years. SeeExecutive Order No. 9980, 13 FR 4,311 (July 28, 1948); Executive Order No. 10590, 20 FR 409 (Jan. 19, 1955); Executive Order No. 10925, 26 FR 1,977 (Mar. 8, 1961); Executive Order No. 11246, 30 FR 12,319 (Sept. 28, 1965); Executive Order No. 11478, 34 FR 12,985 (Aug. 12, 1969). The EEOC, itself just created in 1964, initially had no role in administering these Executive Orders. Responsibility instead fell to the Civil Service Commission, which in 1966 codified its Federal-sector EEO complaint procedures at 5 CFR part 713. Those procedures largely reflected pre-existing procedures promulgated outside the traditional rule-making process under the earlier Executive Orders.

In 1972, Congress amended title VII to add section 717. This new section extended title VII coverage to employees and applicants at most Federal agencies, mandating that “[a]ll personnel actions affecting employees or applicants for employment [in covered agencies] shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. 2000e-16(a). And the new section gave Federal employees and applicants the right to file a de novo civil action under title VII after exhausting administrative remedies. Id. § 2000e-16(d).

Authority to regulate this new administrative process was placed in the Civil Service Commission—not the EEOC. Id. § 2000e-16(b) (1972). The Civil Service Commission largely retained the sequence and structure from its 1966 procedural regulations, supra, including initial counseling, filing a complaint with the respondent agency, designated opportunities for informal resolution, investigation by the respondent agency, an administrative hearing, final action by the respondent agency, and an appeal to an outside agency.

The Civil Service Commission's oversight of the Federal-sector EEO complaint process lasted just a few years. The Civil Service Reform Act of 1978 abolished the Civil Service Commission. Pursuant to Reorganization Plan No. 1 of 1978 and Executive Order 12106, the EEOC assumed the Civil Service Commission's title VII responsibilities. EEOC also received Federal-sector responsibilities under the Equal Pay Act, the Age Discrimination in Employment Act, and the Rehabilitation Act.

When EEOC assumed these functions, it retained the Civil Service Commission's procedures and standards for EEO complaints. These procedures and standards were simply re-styled and re-codified under part 1613 of title 29 of the Code of Federal Regulations.

In 1989, the EEOC proposed a new framework, to be housed under part 1614, that promised to “fundamentally restructure[] the Federal sector equal employment opportunity complaint process.” 54 FR 45747, 45747 (Oct. 31, 1989). Under the new framework, at the conclusion of the hearing process, an EEOC administrative judge would issue a recommended decision. If the agency's ensuing final action rejected the EEOC administrative judge's recommended decision, the complainant could appeal to the EEOC. The final rule, adopted in 1992, confirmed this shift. 57 FR 12634, 12634-12662 (Apr. 10, 1992).

The Commission has revised part 1614 several times since 1992. Revisions in 1999 responded to concerns that the process was too long, involved too many layers of review, encouraged fragmentation of claims, and allowed agencies to revise administrative judge decisions in ways that undermined confidence in impartiality. See64 FR 37644 (July 12, 1999). The 1999 revisions dramatically expanded the role and authority of administrative judges by limiting agencies to issuing final orders stating whether they would fully implement an administrative judge's decision, rather than rewriting that decision. And if an agency did not fully implement an administrative judge's decision, the agency had to simultaneously file an appeal with the Commission.

Part 1614 was last revised in 2012. Those revisions add compliance-review tools, permit agency pilot projects with Commission approval, require notices when investigations were not timely completed, require digital submission of appeal records, and make administrative judge decisions on the merits of class ( printed page 55691) complaints final subject to appeal. See77 FR 43498 (July 25, 2012).

II. Purpose and Justification of Proposed Rulemaking

The purpose of the Federal-sector EEO complaint process is to “encourag[e] quicker, less formal, and less expensive resolution of disputes within the Federal Government and outside of court.” West v. Gibson, 527 U.S. 212, 219 (1999). The Federal-sector EEO complaint process, in its current form, strays from this purpose. Mandatory pre-complaint counseling, a longstanding fixture of the EEO complaint process, consistently fails to provide employees and applicants with effective resolutions. A regrettably common result of counseling is for employees and applicants to simply abandon their claims. When employees and applicants do file complaints, their claims are routed to an ineffective and unmanageable EEOC hearing process. Proceedings before EEOC administrative judges are too long, too formal, and too adversarial, for both complainants and agencies. These burdens cannot be justified since, in the Commission's experience, the great majority of complaints can be resolved fairly and accurately by agencies based on the existing investigative file without duplicative involvement from an EEOC administrative judge.

The Commission proposes to revise the Federal-sector EEO complaint process to, among other things, rescind mandatory pre-complaint counseling, reserve administrative judge proceedings, including hearings, for cases identified by the EEOC on appeal for targeted referral, clarify standards for attorney's fees, and implement requirements under the Cummings Act.

A. Mandatory EEO Counseling Does Not Produce Results

The current rule mandates pre-complaint EEO counseling in every case “in order to try to resolve the [allegedly discriminatory] matter.” 29 CFR 1614.105(a). Counseling has not, however, proved an effective means to this end. From 2017 to 2021, Federal agencies conducted on average 35,618 counselings a year. Despite the high volume, each year on average only 385 cases settled at the pre-complaint stage through EEO counseling. This amounts to 1% of all counselings. In contrast, agency ADR programs—a process wholly separate from EEO counseling and not involving an EEO counselor—resulted in an average of 3,924 pre-complaint settlements each year. This amounts to 11% of pre-complaint matters. EEO counseling's low success rate—both at the bottom line and compared to agency ADR programs—does not justify its substantial burdens.

The EEOC proposes transitioning to a direct filing model. In other words, employees and applicants would be permitted to file complaints without first going through mandatory pre-complaint counseling with the agency. The EEOC invites comments on alternatives to direct filing, including alternative ways, other than mandatory counseling, that complainants and agencies could use the pre-complaint period to resolve complaints before they are filed.

B. Current Administrative Judge Proceedings Are Ineffective

Under the current rule, complainants always have the option to request a hearing and litigate their complaints before an EEOC administrative judge. Consequently, administrative judges preside over thousands of complaints a year. From fiscal year 2017 through fiscal year 2025, the EEOC received an average of 7,514 hearing requests per year. This is not to say the EEOC conducted 7,514 hearings each year. Given the limited resources granted by Congress each year, it would be impossible for the EEOC to conduct a full hearing whenever one is requested. Instead administrative judge proceedings primarily entail filtering and disposing of cases without a hearing, with dismissal or summary judgment in an agency's favor as the most common mechanisms. In application, however, this approach has ossified into a process that is too long, too formal, and too adversarial.

1. The Hearing Process Is Too Long

From fiscal year 2021 through fiscal year 2025, complaints in the EEOC hearing process took an average of 442 days from docketing the hearing request to a decision by the administrative judge. Phrased differently, it takes the EEOC on average 1.21 years to process a single complaint in its hearing process. A process that takes over a year is hardly expeditious.^[1]

The overall average, however, does not tell the whole story. Cases naturally vary in complexity and impact. But it should go without saying that those cases where a complainant has a meritorious claim, meaning they have been a victim of unlawful employment discrimination, are the most important. Here the need for expeditious justice is most acute. Yet the EEOC hearing process has utterly failed to deliver timely outcomes. From fiscal year 2021 through fiscal year 2025, successful complainants—in other words victims of unlawful discrimination—had to wait on average an astonishing 962 days, or 2.63 years, before receiving a decision and relief from an EEOC administrative judge. And this is just the average. One in four successful complainants had to wait 1190 days, or 3.26 years, or more to receive a decision and relief. One in ten had to wait 1661 days, or 4.55 years, or more. A process that requires victims of unlawful discrimination to wait so long for their due justice cannot be defended.

These prolonged processing times do not mean that EEOC administrative judges are putting in years of work into each individual case. Rather, to the Commission's observation, much of this time is spent simply waiting on an administrative judge to act. Repeatedly the Commission has found cases ripe for decision simply idling for months on administrative judge dockets. Even cases where liability is clear or likely will sit in docket purgatory as administrative judges prioritize easier closures.

For all this, the quality and accuracy of the eventual decisions by administrative judges do not appear materially superior to what an agency's independent EEO office could have produced at the outset. Returning decision-making to the agency in the first instance and placing a firm deadline on that decision will give complainants and agencies the expeditious results they deserve. This is much more in line with title VII's straightforward requirement that complainants first receive “final action” from their employing agency. 42 U.S.C. 2000e-16(c). And should an agency's “final action” be incorrect, complainants may still “appeal” to the EEOC as contemplated by the statute. Id. A targeted appellate process will give the EEOC increased flexibility, compared to the current summary judgment model, to expeditiously identify and resolve potentially meritorious claims.

2. Discovery and Summary Judgment Are Too Formal and Too Adversarial for the Needs of the EEO Process

As the Supreme Court observed in West, supra, the EEOC's administrative complaint process is intended to be quicker, less formal, and less expensive than a civil action in Federal district court. 527 U.S. at 219. Yet contrary to this purpose, current EEOC procedures effectively mirror the traditional civil ( printed page 55692) action, particularly when it comes to discovery and summary judgment. This makes the EEO process costlier, more formal, and more adversarial than it needs to be.

Under the current rule, both parties before the administrative judge have “the right to seek [pre-hearing] discovery . . . . through interrogatories, depositions, and requests for admissions, stipulations or production of documents.” 29 CFR 1614.109(d). The EEOC has never defined the right to discovery with precision, leading to significant variability amongst regional offices and individual administrative judges. What is common is that both sides, agencies and complainants, abuse the open-ended discovery process for litigation advantage. Extensive and intrusive discovery from an agency can successfully pressure a complainant into withdrawing their hearing request, particularly if they do not have attorney representation. Alternatively, agencies can often convince the administrative judge to dismiss the hearing request as a sanction when a pro se complainant has not fully responded to the letter of the agency's highly technical discovery requests. On the other side of the ledger, complainants can use the high costs of discovery, including the potential for crippling attorney fees, to leverage their settlement demands and secure substantial payouts from the defending agency on even marginal claims. And when both sides hold their ground in discovery, the administrative judge is often left to untangle competing and acrimonious motions to compel. Discovery disputes consume an unjustified share of an administrative judge's time, leaving less time and resources to consider the actual merits of complaints.

Summary judgment is an additional procedural barrier under the current rule. 29 CFR 1614.109(g). The standard and process are virtually identical to summary judgment under Rule 56 of the Rules of Federal Procedure, with a full and lengthy briefing period. This means agencies must invest substantial resources and legal expertise drafting summary judgment motions in order to defend against meritless complaints. For their part, complainants must respond in detail to each agency assertion and argument. Many pro se complainants end up not responding at all, with the consequence that administrative judges routinely consider the motion unopposed and automatically grant judgment in the agency's favor. And even when complainants do respond, administrative judges routinely adopt the agency's motion as their decision, providing no statement of facts or legal analysis of their own. This common practice among administrative judges effectively allows agency defense counsel to write their own decisions. The upshot is that agencies, rather than administrative judges, are already doing most of the heavy lifting on decision-making.

3. Complaints Requiring Hearings Are Rare

The current automatic hearing-request model requires the Commission to maintain—and agencies to litigate—a full docket of thousands of cases each year even though the core function that justifies that docket—an evidentiary hearing—is needed in only a small fraction of matters. From fiscal year 2017 through fiscal year 2025, the EEOC received an average of 7,514 hearing requests per year. Yet, during that same period, only an average of 304 evidentiary hearings per year were held—approximately 4.0 percent of hearing requests. And only an average of 128 cases per year resulted in a finding of liability against an agency—approximately 1.7 percent of hearing requests. Put differently, the automatic hearing-request model generated roughly twenty-five hearing requests for every case that actually went to a hearing, and nearly fifty-nine hearing requests for every case that resulted in agency liability.

4. Reforming Administrative Judge Proceedings

The low hearing rate, coupled with the length, formality, and adversarial nature of administrative judge proceedings, force agencies, complainants, and administrative judges to put nearly all their time, resources, and expertise into cases without merit. The result is an enormous mismatch between the resources consumed by the automatic hearing-request model and the adjudicatory value the model actually delivers. This mismatch is even more concerning when we consider the years it takes administrative judges to address the cases that do have merit. To reiterate, a successful complainant ends up waiting on average over two-and-a-half years for a decision from an administrative judge.

The proposed rule addresses the mismatch by replacing the automatic hearing-request model with a targeted referral model. Under the proposed rule, the agency would still be responsible for developing an appropriate factual record through investigation, after which it would issue a prompt final agency decision. A complainant can appeal the final agency decision to the Commission. Through an appeal a complainant can request referral to an administrative judge for a hearing, explaining why a hearing would be necessary or efficient to decide the appeal. Granting the request would be discretionary, with the Commission considering factors such as whether the appeal raises genuine disputes of fact or credibility that cannot be fairly resolved on the current record. The Commission's appellate review would be de novo, and on appeal the Commission may decide the matter on the administrative record, order targeted supplementation of the record, remand for further agency action, or refer the complaint to an administrative judge for proceedings, including a hearing, when necessary or efficient.

When the Commission does refer a matter to an administrative judge, the proceedings would not amount to a wholesale retrial of the complaint but would be limited to an appropriate scope by the Commission's referral order. The purpose of the administrative judge proceedings would be to assist the Commission in resolving the appeal, and to that end, the administrative judge would provide the Commission with a recommended decision, recommended findings, or report. The Commission could adopt, reject, or modify the administrative judge's recommendation as appropriate in arriving at its final decision on the appeal.

Administrative judge proceedings would therefore remain available, but would only occur when the Commission determines that such proceedings are necessary or efficient to resolve an appeal—for example, where there is a genuine dispute of material fact or a material credibility issue that cannot be fairly resolved on the current record, an incomplete record that can be more efficiently supplemented before an administrative judge, or a likely finding of discrimination requiring further remedial proceedings. This approach preserves administrative judge resources for the cases in which they are most likely to add decisional value, while avoiding the costs of routing thousands of cases each year into a decisional structure that, in most cases, does not culminate in a hearing.

The revised process otherwise preserves impartial agency investigations, final agency decisions, Commission de novo appellate review, remedies, compliance procedures, and civil action rights, while allowing the Commission to focus administrative judge resources on cases where live testimony, credibility findings, targeted discovery, or other proceedings are necessary or efficient. ( printed page 55693)

The revised rule would not alter statutory civil action rights. A complainant may file a civil action in Federal district court within the time periods authorized by law and § 1614.407. Filing a civil action terminates Commission processing, including any administrative judge proceedings.

The EEO complaint process was never meant to replace or mirror the civil action. Its purpose is to complement the civil action by providing an alternative avenue for speedy and informal resolution. Conversely, if a complaint requires lengthy formal proceedings or extensive record development through discovery, then a civil action is the more appropriate avenue.

The proposed revisions to part 1614 restore the appropriate balance between the Commission-overseen EEO complaint process and the civil action in Federal court. Complainants and agencies will no longer be subjected to unduly formal and adversarial proceedings before administrative judges by default. When complaints are heard by an administrative judge after a hearing referral on appeal, the judge will promptly reach the merits without bogging the parties down in motion practice. And if this speedier, less formal process does not suit the needs of a particular complainant, they always retain the right to file a de novo civil action in Federal court.

C. Class Complaints

The EEOC has also experienced recurring difficulty in the processing and adjudication of class complaints. Class complaints often require extensive case management, class-definition analysis, notice procedures, discovery management, settlement oversight, and numerous individualized remedial proceedings. The EEOC's Federal-sector administrative process was designed principally to resolve complaints by identified employees and applicants. It has not demonstrated the resources, institutional structure, or specialized capability to adjudicate large classes effectively. Class complaints consequently have remained a perennial source of delay, complexity, and uncertainty for complainants, agencies, and the EEOC. In some cases, the EEOC has taken more than a decade to resolve even threshold certification issues in class complaints.

This proposed rule would revise part 1614 to focus on individual complaints in alignment with the Commission's resources and institutional role. Among other changes, the proposed rule would eliminate administrative class complaints under part 1614, while preserving the ability of an identified complainant to assert a putative class claim for exhaustion purposes. And the proposed rule would preserve the ability of agencies and the Commission to jointly process related individual complaints where joint processing would promote fair, efficient, and timely resolution.

D. Attorney's Fees

Under the current framework, the EEOC has observed significant variability in attorney fee awards. The proposed rule retains the lodestar model but clarifies that rates are determined based on prevailing market rates for work comparable to the EEO administrative process. Fee matrices developed outside the EEO administrative process, such as the Laffey Matrix, would generally not be appropriate evidence of the prevailing market rate for work comparable to the EEO administrative process.

E. Cummings Act Implementation

The proposed rule also implements requirements made by the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020 (“Cummings Act”), enacted as subtitle B of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021. The Cummings Act amended the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (“No FEAR Act”) to strengthen accountability, transparency, and tracking of discrimination and retaliation findings in the Federal Government.

First, the Cummings Act requires the head of a Federal agency subject to a final finding of discrimination, including retaliation, to post a public notice not later than 90 days after the relevant final agency decision or other final agency action, final Commission decision, or court judgment becomes final after exhaustion of appeals. The notice must be posted on the agency's public website in a clear and prominent location linked directly from the homepage, must state that a finding of discrimination or retaliation has been made, and must remain posted for not less than one year. The notice also must identify the date of the finding, the date of each discriminatory or retaliatory act, the law violated, and the rights and protections available to Federal employees.

Second, the Cummings Act requires agencies to report disciplinary action information to the Commission. Not later than 120 days after an agency takes final action, or receives a final Commission decision, involving a finding of discrimination or retaliation, the agency must submit a report to the Commission stating whether disciplinary action has been proposed against a Federal employee as a result of the violation and the reasons for any proposed disciplinary action.

Third, the Cummings Act expands public data posting requirements. Agencies must post additional information concerning findings of discrimination, including the date of the finding, the affected agency, the law violated, and whether a disciplinary action decision has been made. The Act also requires agencies to post data regarding each class action complaint filed against the agency alleging discrimination or retaliation, including the filing date, a general summary of allegations, an estimate of the number of plaintiffs or class members if known, the current status of the complaint, whether a class has been certified, and case numbers for civil actions in which discrimination or retaliation has been found.

Fourth, the Cummings Act requires each Federal agency to establish a system to track each discrimination complaint adjudicated through the EEO process from filing through resolution, including whether a disciplinary-action decision has been made as a result of any finding of discrimination. It also requires an agency that takes an adverse action covered by 5 U.S.C. 7512 against a Federal employee for discriminatory or retaliatory conduct to include, after all appeals of that adverse action have been exhausted, a notation of the adverse action and the reason for it in the employee's personnel record.

Finally, the Cummings Act requires agencies to be responsible for the fair and impartial processing and resolution of employment-discrimination complaints and to establish model EEO programs that are not under the structural or practical control of the agency's human capital office, general counsel's office, or equivalent offices. The Act further requires the head of each agency's EEO program to report directly to the head of the agency.

Accordingly, this proposed rule would update subpart G of part 1614 to implement the Cummings Act's public-notice, reporting, data-posting, complaint-tracking, and personnel-record-notation requirements. It also would revise agency-program requirements in subpart A to reflect the Cummings Act's direction that the agency EEO Director report directly to the agency head and that the EEO program operate independently of offices whose responsibilities may create actual or perceived conflicts in ( printed page 55694) the fair and impartial processing of discrimination complaints.

III. Section-by-Section Analysis

Authority Citation for Part 1614

The proposed rule would revise the authority citation for part 1614. The revised citation would add 5 U.S.C. 2301 note, reflecting the No FEAR Act and the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020, and would retain the Commission's existing statutory and Executive Order authorities for Federal-sector EEO complaint processing and agency EEO programs.

Nomenclature Change—Office of Federal Sector

Throughout part 1614, the proposed rule would remove the words “Office of Federal Operations” wherever they appear and add, in their place, the words “Office of Federal Sector.” This nomenclature change would update the regulatory text to reflect the new name of the Commission office responsible for, among other things, appellate review and oversight functions under this part. The change is non-substantive: it would not alter the office's functions, responsibilities, or authority to act on behalf of the Commission under part 1614. References in prior Commission decisions, orders, management directives, and guidance to the Office of Federal Operations should be understood as references to the Office of Federal Sector. Consistent with this change, all proposed regulatory text in this document refers to the Office of Federal Sector.

Section 1614.102—Agency Program

The proposed rule would amend § 1614.102(a)(8) to modernize the terminology from the outdated “employees with handicaps” to the more modern terminology “employees with disabilities.”

The proposed rule would insert a new paragraph (a)(9) to recognize agencies' obligation to provide reasonable accommodation for pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship on the agency's program. Current sub-paragraphs (9) through (13) would be renumbered (10) through (14) but otherwise remain the same.

Paragraph (b)(2) of § 1614.102 would continue to require each agency to establish or make available an alternative dispute resolution program. However, the Commission proposes to amend the qualification that such program must “be available for both the pre-complaint process and the formal complaint process.” With the removal of mandatory EEO counseling, there will no longer be a delineated “pre-complaint process.” To reflect this change, the provision would read: “be available before and after a complaint is filed.”

Paragraph (b)(4) would revise the requirements for the agency EEO Director. The proposed rule would require the EEO Director to report directly to, and be under the immediate supervision of, the agency head. Reporting to an intermediate official would not satisfy this requirement. This change would implement the independence and reporting-relationship requirements reflected in the Cummings Act and would reinforce the separation of the EEO program from offices whose duties may create actual or perceived conflicts with impartial complaint processing and adjudication.

In addition, the proposed rule would revise § 1614.102(b)(4) to require each agency to designate an EEO Director “and such other personnel as may be necessary to carry out the functions described in this part,” rather than listing specific categories of staff such as EEO Officers, Special Emphasis Program Managers, and clerical and administrative support. The Commission proposes to replace that list with the more general term “other personnel” while retaining the substantive requirement that agencies designate sufficient staff to carry out part 1614 functions in all organizational units and at all agency installations. The existing list reflects legacy terminology and examples that may no longer correspond to the way all agencies organize their EEO programs. The proposed language also avoids the possible inference that the positions named in the current rule are either mandatory in every agency or exclusive of other necessary EEO functions. A single regulatory list of titles is therefore both underinclusive and potentially over-prescriptive. The more general phrase “other personnel” better captures the range of staff an agency may need to carry out the functions of part 1614.

Paragraph (b)(6) would continue to require agencies to ensure full cooperation by agency employees with agency EEO personnel in the processing and resolution of complaints, and full cooperation with the Commission in appeals, including by providing access to personnel records and other agency records when required in connection with an investigation. However, the Commission proposes to eliminate specific references to EEO counselors and pre-complaint processing, as the Commission proposes to eliminate the requirement for pre-complaint processing including required contact with an EEO counselor.

Paragraph (b)(7) would revise agency notice obligations. Agencies would be required to publicize and keep readily accessible the name and contact information of the EEO Director, instructions for requesting pre-complaint technical assistance, instructions for initiating and filing a complaint, available filing methods, and notice of applicable deadlines and procedural requirements. Agencies also would be required to make this information available through appropriate employee communications channels, including electronic means, and to ensure accessibility to employees in headquarters, field, remote, and other duty locations. The Commission proposes to eliminate specific references to EEO counselors, EEO officers, and Special Emphasis Program managers in alignment with the removal of the requirement for pre-complaint contact with an EEO counselor and to eliminate the suggestion that specific positions (other than EEO Director) are required, so as to give agencies more flexibility in structuring their EEO programs.

The proposed rule would add paragraph (b)(8) to state that each agency shall “maintain a process for employees and applicants to request and receive appropriate and effective pre-complaint technical assistance.”

Paragraph (c)(4) would be revised to conform to the proposed rule's elimination of administrative class complaints. The Commission also proposes to revise this paragraph to remove the requirement that the agency EEO Director be responsible for providing “counseling for aggrieved individuals” to conform with the proposed elimination of pre-complaint processing.

Section 1614.103—Complaints of Discrimination Covered by This Part

Paragraph (a) would provide that complaints may be jointly processed as provided in §§ 1614.204 and 1614.606, but that putative class claims may be asserted only as provided in § 1614.204(b) for administrative exhaustion and may not be processed as class complaints under this part.

The proposed amendments to paragraphs (b)(3), (b)(6), and (d)(2) would update references to covered and excluded entities, including the United States Postal Service, Postal Regulatory Commission, Tennessee Valley Authority, Government Publishing ( printed page 55695) Office, and Government Accountability Office.

Section 1614.104—Agency Processing

The proposed rule would make conforming changes to § 1614.104(a) to reflect the proposed elimination of administrative class complaints.

The proposed rule would add paragraph (c) to allow agencies to petition the Commission for permission to adopt an internal hearing process as part of its complaint adjudication responsibilities. The Director, Office of Federal Sector, would decide petitions and annually review approved internal hearing processes for effectiveness and impartiality. The Director may revoke approval for non-compliant processes upon reasonable notice to the agency and opportunity to demonstrate compliance. The Commission intends that approved hearing processes will be rare and reserved for agencies with compelling needs and reliable pre-existing hearing infrastructure.

The Commission recognizes that in circumstances of compelling need, such as when national security interests are implicated, waiting for a determination from the Commission whether to conduct a hearing or not can negatively impact agency performance and readiness. For these agencies, allowing them to voluntarily support a complainant's request for a hearing on appeal may not be effective enough. If an agency would be negatively impacted by delay, and if the agency already has an effective means to conduct hearings, it makes sense to allow the agency to early on develop evidence through its own hearing before issuing the final agency decision. Proposed paragraph (c) anticipates and meets this need.

By conducting early hearings, approved agencies will likely be able to self-impose liability, and provide relief to the complainant, earlier than would have been achieved through the normal EEOC appeal process. If an agency conducts a hearing and declines liability, the EEOC will benefit from a more robustly developed record on appeal than it otherwise would have. And if the agency declines to conduct a hearing, the EEOC on appeal can still order a hearing before one of its own administrative judges where necessary or efficient.

Section 1614.105—Pre-Complaint Processing

The proposed rule would remove and reserve § 1614.105. Under the proposed rule, the separate pre-complaint counseling provision would be eliminated as a required step. The filing requirements for individual complaints would now be set forth in proposed § 1614.106. Agencies would remain obligated to establish or make available ADR programs and to make reasonable efforts to resolve complaints informally, but the proposed rule would no longer maintain the existing pre-complaint counseling section as a separate regulatory prerequisite.

Section 1614.106—Individual Complaints

The proposed rule would revise § 1614.106 in full. Proposed paragraph (a) would require a complaint to be filed with the agency that allegedly discriminated against the complainant.

Proposed paragraph (b) would establish a 60-day filing period. A complaint, amendment, or supplementation would have to be filed within 60 days of the date of the matter alleged to be discriminatory, or, in the case of a personnel action, within 60 days of the effective date of the action, or, in the case of a hostile work environment or other continuing violation, within 60 days of the most recent act alleged to have contributed to the violation.

Proposed paragraph (c) would specify the required contents of a complaint. A complaint would have to contain a signed statement from the aggrieved person or that person's attorney, identify the complainant and respondent agency, and include sufficient factual information to identify the challenged action, omission, policy, practice, or matter; the alleged basis or bases; the approximate date or time period; and the relief sought, if known. The proposed rule would state that a complaint need not use technical legal terminology, but it must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face based on discrimination prohibited under part 1614.

A plausibility standard is intended to distinguish between complaints that warrant the expenditure of administrative resources and complaints that consist only of labels, conclusions, speculation, or an unadorned assertion that the agency acted unlawfully. The current rule already authorizes dismissal of complaints that fail to state a claim, and the proposed rule would make that screening function more precise by requiring factual allegations sufficient to permit a plausible inference that the challenged agency action, omission, policy, practice, or matter may have been discriminatory.

Once a complaint is accepted, the agency must define the claims, gather documents, obtain testimony, prepare an investigative file, issue a final agency decision, and, if appealed, submit the matter for Commission review. The plausibility standard will ensure that those agency resources are devoted to matters in which the alleged facts, if true, would support a cognizable discrimination claim, rather than to matters that are merely conceivable, conclusory, unrelated to a protected basis, or based on mere disagreement with ordinary workplace decisions unconnected to unlawful discrimination.

Proposed paragraph (d) would govern amendments and supplementations. Current procedures for adding claims to a complaint do not distinguish between claims existing at the time of the original complaint and claims arising after the original complaint. This leads to the anomalous result that a complainant can wait until very late in the investigatory process to “amend” their complaint to include claims that were known to exist to the complainant at the time they filed the original complaint. The proposed changes would now properly distinguish between amendments and supplementations and clearly instruct complainants when to file.

A complainant could amend a complaint within 21 days after filing to include claims or issues existing at the time the complaint was filed that are like or related to those raised in the complaint. Before the final agency decision, a complainant could supplement a complaint to include claims or issues arising after the complaint was filed that are like or related to those raised in the complaint. The agency would be required to acknowledge amendments and supplementations and include them in the complaint record. A decision declining to accept an amendment or supplementation would not be immediately reviewable by the Commission but can be reviewed on appeal from the final agency decision on the original complaint.

Proposed paragraph (e) would prescribe the agency's acknowledgment and notice of rights. The agency would be required to acknowledge receipt of a complaint in writing, identify the filing date, and advise the complainant of the agency's duty to conduct an impartial and appropriate investigation and issue a final agency decision. The notice also would explain the applicable deadlines for investigation and decision, the right to appeal the final agency decision to the Commission, the Commission's authority on appeal to decide the matter on the record, supplement the record, remand, or refer the matter to an ( printed page 55696) administrative judge, and the right to file a civil action.

Section 1614.107—Dismissals of Complaints

The proposed rule would amend § 1614.107 to conform dismissal standards to the proposed revised complaint-processing procedures. Proposed paragraph (a) would continue to identify grounds for dismissal of an entire complaint. The proposed revisions would provide for dismissal where a complaint fails to state a claim under § 1614.103, fails to satisfy the pleading requirements of § 1614.106(c), states the same claim pending before or decided by the agency or Commission, or fails to comply with the filing time limits in § 1614.106.

The proposed rule also would revise paragraph (a)(5) to provide that an agency shall dismiss a complaint that is moot or that alleges that a proposal to take a personnel action, or another preliminary step to taking a personnel action, is discriminatory, unless the complaint alleges a retaliation claim that is plausible on its face.

Proposed paragraph (b) would govern partial dismissals. When an agency determines that some but not all claims should be dismissed, the agency would have to notify the complainant in writing, identify the claims that will not be accepted, explain the rationale, and place the notice in the complaint record. The agency would continue processing any remaining accepted claims.

A partial dismissal would not be immediately reviewable by the Commission but could be reviewed on appeal from the final agency decision on the remainder of the complaint.

Section 1614.108—Investigation of Complaints

The proposed rule would revise § 1614.108 in full. The Commission proposes to add paragraph headings to paragraphs (a) and (b). Current paragraph (a) says the agency shall “conduct” the investigation, creating confusion whether an agency may engage in workshare agreements with other agencies for investigations or may use contract investigators. Paragraph (a) would be revised to clearly convey that the agency is “responsible” for investigating the complaint. Paragraph (b) would otherwise continue to read the same.

The proposed revision to § 1614.108(c)(3) would preserve the existing duty to cooperate with an EEO investigation but would restate the consequences of noncooperation in a more tailored and legally precise way. Current § 1614.108(c)(3) permits an investigator to note that, when a complainant, agency, or agency employee fails without good cause to respond fully and timely to investigative requests, the decisionmaker or the Commission may draw adverse inferences, deem matters established, exclude evidence, issue a decision fully or partially in favor of the opposing party, or take other appropriate action. The proposed rule would replace that formulation with language allowing the investigator to document the failure and allowing the agency or Commission to consider the failure in evaluating the evidence, draw appropriate nonmonetary evidentiary inferences, exclude untimely produced evidence, or take other nonmonetary procedural or evidentiary action consistent with part 1614 and applicable law.

Proposed paragraph (d) would address classified information and other information requiring special handling. Investigations involving such information would have to be conducted by investigators with appropriate credentials, authorizations, or security clearances, and the Commission would supply the name of an appropriately cleared investigator upon request.

Proposed paragraph (e) would establish investigation deadlines. The agency generally would be required to complete the investigation within 135 days of the filing of an individual complaint. This deadline would be extended to 180 days for an introductory period, until January 1, 2028, to allow agencies time to adapt their EEO programs to the new procedures.

For supplemented complaints, the agency would be required to complete the investigation by the earlier of 135 days after the last accepted supplementation or 270 days after the original complaint was filed.

The complainant and agency could voluntarily extend these deadlines by written agreement for not more than 90 days. The agency also could unilaterally extend the deadline by not more than 30 days where sanitization of a complaint file is necessary because the file may contain classified or other protected information, provided the agency notifies the complainant.

Proposed paragraph (f) would allow the parties to submit additional evidence to the investigator within 15 days of receiving the investigative file. This will allow both parties a full and fair chance to fill in any gaps in the investigatory record before a final agency decision. After the time for supplementing the investigative file elapses, the record is closed.

Proposed paragraph (g) would set the deadline for the agency to issue its final agency decision under § 1614.110 following an investigation. The decision would be due within 30 days of the record closing.

Proposed paragraph (h) would address situations where an agency cannot complete the investigation or issue a final agency decision within the applicable time limits. In such situations, the agency must issue a written notice to the complainant explaining why the investigation or final agency decision has not been completed, estimating when the delayed action will be completed, and informing the complainant of the right to file a civil action. The agency remains responsible for completing the investigation and issuing a final agency decision unless the complainant files a civil action or the Commission otherwise directs. The agency would also be required to simultaneously inform the Office of Federal Sector of delays. This will allow the Office of Federal Sector to monitor compliance in real time and more proactively intervene if an agency misses its deadlines without good cause.

Section 1614.109—Offers of Resolution

The proposed rule substantially revises and renames § 1614.109. Standards for administrative judge proceedings, including hearings, would be moved to § 1614.406 under Subpart D—Appeals and Civil Actions, infra. Proposed § 1614.109 would solely address offers of resolutions. The current offer-of-resolution procedure is contained in § 1614.109(c). The existing provision is tied to the hearing process and contains different timing rules depending on whether the complainant is represented by an attorney and whether an administrative judge has been appointed. In the Commission's experience, that provision has been rarely used, notwithstanding its potential to promote settlement and reduce unnecessary attorney fees and costs.^[2] The proposed rule would make the procedure more useful by making it available after a written complaint has been filed and at any stage of administrative processing, and specifying the contents and consequences of a valid offer.

( printed page 55697)

The proposed rule would preserve the settlement-promoting purpose of the existing provision while making it more predictable and enforceable. A valid offer must identify the complaint, claims, and parties to be resolved; state the monetary and nonmonetary relief offered with sufficient specificity; provide for reasonable attorney fees and costs incurred through the end of the acceptance period; remain open for at least 30 days; state whether fees and costs are included in or excluded from the offer; and clearly explain the consequences of rejection. An accepted offer resolves the complaint to the extent stated in the offer and is enforceable under § 1614.504. An accepted offer does not constitute an admission of liability unless the offer expressly so provides.

If a complainant rejects a valid offer and the relief finally obtained is not more favorable than the offer, the complainant may not recover attorney fees or costs incurred after the acceptance period expires, except where the offer was invalid, unenforceable, materially incomplete, or where application of the limitation is prohibited by the governing fee statute. The proposed rule also specifies how the comparison between the offer and the relief finally obtained is to be made. The comparison must be objective, must consider both monetary and nonmonetary relief, must evaluate nonmonetary relief according to practical effect and enforceability, and must exclude post-offer attorney fees and costs from the relief finally obtained. The agency bears the burden of proving both that the offer was valid and that the relief finally obtained was not more favorable.

These revisions are intended to make offers of resolution a practical settlement tool at all stages of the administrative process rather than a rarely used hearing-stage device. The proposed rule encourages agencies to make serious, complete, and enforceable settlement offers early enough to avoid unnecessary administrative expense. It encourages complainants and representatives to evaluate such offers realistically. And it reduces collateral disputes by specifying in the rule the timing, required contents, acceptance procedure, fee consequences, comparison methodology, limitations, treatment of multiple offers, and evidentiary effect of an unaccepted offer.

Section 1614.110—Final Agency Decisions

The proposed rule would retitle § 1614.110 to reflect that the final agency decision is the ordinary adjudication mechanism for all complaints. The proposed rule would revise § 1614.110 in full to replace the current hearing-election structure with a model where the agency must always promptly issue a final agency decision following its investigation, unless the matter is subject to earlier dismissal.

Current § 1614.110 is built around two paths: if an administrative judge issues a decision, the agency issues a final order within 40 days stating whether it will fully implement the administrative judge's decision, and, if it will not, the agency simultaneously appeals; in other cases, the agency issues a final agency decision only for a dismissal, after a complainant's request for an immediate decision, after a complainant's failure to respond to the post-investigation notice offering a hearing or immediate final decision, or as ordered by the Commission.

The proposed section reforms that fractured structure. Because the proposed rule removes the option to request an administrative judge hearing before the final agency decision, the agency's ordinary obligation will be to complete the investigation on an accepted complaint and issue a final agency decision on the merits within the time limits proposed by § 1614.108(e). Alternatively, the agency shall issue an immediate final agency decision dismissing the entire complaint for the reasons stated in § 1614.107.

Proposed paragraph (a) would require the agency to issue an immediate final agency decision where the entire complaint is subject to dismissal for the reasons stated in § 1614.107. The final agency decision would describe the dismissed claims, provide the rationale for dismissal, and advise the complainant of appeal rights, civil action rights, and notice that the Commission may decide an appeal on the record, supplement the record, remand the matter to the agency, or refer the matter to an administrative judge.

Proposed paragraph (b) would require the agency to issue a final agency decision on the merits of the accepted complaint within the time limits proposed by § 1614.108(e). The final agency decision would be decided on a preponderance of the evidence standard. The final agency decision would describe the claims, provide rationales for findings of discrimination or no discrimination, provide relief when discrimination is found, and advise the complainant of appeal rights, civil action rights, and notice that the Commission may decide an appeal on the record, supplement the record, remand the matter to the agency, or refer the matter to an administrative judge. If discrimination is found, the agency would provide appropriate remedies and relief under subpart E.

Proposed paragraph (c) would allow an agency that believes administrative judge proceedings would be necessary or efficient if the complainant appeals to include a referral request in or with the final agency decision. The request would have to identify the issues for referral and explain why referral would be necessary or efficient. Such a request would not affect the finality of the agency's decision or the complainant's appeal or civil action rights.

Proposed paragraph (d) would state that a final agency decision issued under § 1614.110 is final agency action for purposes of subparts D and E, subject to Commission review if timely appealed and subject to termination of administrative processing if a civil action is filed.

Section 1614.203—Rehabilitation Act

The proposed rule would amend § 1614.203(d)(3)(iii)(D) to conform the reasonable-accommodation denial-notice provision to the proposed rescission of mandatory pre-complaint EEO counseling. Current § 1614.203(d)(3)(iii)(D) requires agencies to notify individuals denied reasonable accommodation that they must initiate contact with an EEO Counselor under § 1614.105 within 45 days. Because the proposed rule would remove § 1614.105 and establish direct filing of complaints under § 1614.106, the proposed amendment would instead require the denial notice to explain that the individual may file a complaint under § 1614.106 and to identify the applicable filing deadline and procedural requirements.

Section 1614.204—No Class Complaints; Assertion of Putative Class Claims for Administrative Exhaustion; Joint Processing of Related Individual Complaints

The proposed rule would revise § 1614.204 in full. The revised section would eliminate administrative class complaints under part 1614 while preserving limited mechanisms for presenting putative class claims for administrative exhaustion purposes and for jointly processing related individual complaints.

Proposed paragraph (a) would provide that complaints under part 1614 may be filed, accepted, investigated, heard, decided, resolved, appealed, and enforced only as complaints of identified aggrieved persons, except that related complaints or claims may be ( printed page 55698) processed together under § 1614.204 or § 1614.606. No complaint may be filed, maintained, certified, processed, adjudicated, resolved, appealed, or enforced as a class complaint. Agencies, administrative judges, and the Commission under this part may not certify a class, appoint or recognize a class agent, issue class notice, approve or disapprove a class settlement, adjudicate a class complaint, issue a decision binding absent persons, or award individual relief to persons who are not identified complainants.

Proposed paragraph (b) would allow a complainant to assert a putative class claim in a written complaint, amendment, or supplementation for the purpose of presenting the claim to the agency or Commission for administrative exhaustion purposes. A putative class claim asserted under this paragraph would not be a class complaint and would not make the complainant a class agent or representative. The agency would include the putative class claim in the record and notify the complainant that it will not be certified, heard, decided, resolved, appealed, or enforced as a class complaint. The agency would not investigate the claim as a class complaint, but could investigate the alleged policy, practice, action, or matter to the extent relevant to the complainant's own claim or jointly processed individual claims.

Proposed paragraph (c) would allow two or more identified complainants to file a single joint written complaint or separate complaints concerning substantially similar allegations or the same agency policy, practice, action, or matter. Each identified complainant would have to satisfy the applicable requirements of § 1614.106.

Proposed paragraph (d) would permit identified complainants to request joint processing. It provides that a request should identify the complaints, claims, and complainants proposed for joint processing, describe common questions or relationships among the claims, and explain why joint processing would promote fair, efficient, and timely resolution.

Proposed paragraph (e) would allow the agency or Commission, on its own initiative or on request, to process related individual complaints or claims together where appropriate. Joint processing could include coordinated ADR, investigation, development of a common factual record, discovery, hearings, agency final action, appeals, compliance proceedings, or other case-management procedures.

Proposed paragraph (f) would allow the agency or Commission to decline, limit, discontinue, modify, or sever joint processing where joint processing would cause delay, prejudice, conflicts of interest, privacy or confidentiality concerns, materially different facts or legal issues, classified or protected information issues, or otherwise fail to promote fair, efficient, and timely processing.

Proposed paragraph (g) would preserve the right to receive a decision on an individual complaint. Joint processing and assertion of a putative class claim would not create a class, class representative, class member, opt-in class, opt-out class, or class-wide presumption of discrimination. Joint processing also would not alter any complainant's obligation to satisfy part 1614 requirements or election-of-remedies rules.

Proposed paragraph (h) would govern decisions, settlements, and relief. Findings and determinations would be made as to each identified complainant and claim. The agency or Commission would not make class-wide findings or determine the rights of absent persons. Settlements would have to be in writing, identify the complainants and claims resolved, and bind only the parties to the agreement. Individual relief could be awarded only to identified complainants who are parties to the complaint or proceeding.

Proposed paragraph (i) would clarify the relationship between § 1614.204 and § 1614.606. Complaints processed together would remain individual complaints, and § 1614.204 would supplement the consolidation and joint-processing authority in § 1614.606 without permitting class complaints or class-wide adjudication.

Section 1614.301—Negotiated Grievance Procedures

The proposed rule makes subpart C of part 1614 simpler by reorganizing mixed-case and related-process rules around the questions employees and agencies actually need answered: Which forum may the employee choose? When is the choice made? What must the agency do next? Where does any appeal go? When may the employee go to court? Current subpart C spreads those answers across §§ 1614.301 through 1614.310, including separate provisions for petition contents, EEOC consideration procedures, Special Panel referral, Special Panel organization, Special Panel procedures, and Special Panel enforcement. Many of these provisions simply repeat procedural requirements already clearly stated in the governing statute. To avoid confusion, the proposed rule adopts these requirements by reference to the statute rather than superfluously restating them. The proposal would remove and reserve §§ 1614.304 through 1614.309 and consolidate the operative rules into revised §§ 1614.301, 1614.302, 1614.303, and 1614.310.

Starting with negotiated grievance procedures, the proposed rule would revise § 1614.301 in full. Proposed paragraph (a) would clarify that the section applies only when 5 U.S.C. 7121(d) applies, that is when an aggrieved employee is affected by a prohibited personnel practice described in 5 U.S.C. 2302(b)(1), the matter falls within a negotiated grievance procedure, and that procedure permits discrimination allegations to be raised.

Proposed paragraph (b) would clarify election of remedies. An employee may raise the matter either under part 1614 or under the negotiated grievance procedure, but not both. Election under part 1614 would occur when the employee files a written complaint under § 1614.106. Seeking pre-filing information, technical assistance, or ADR before filing a written complaint would not constitute an election. Election under the negotiated grievance procedure would occur when the employee timely files a written grievance, and the first election would control.

Proposed paragraph (c) would require dismissal of a complaint, or portion of a complaint, that concerns a matter previously elected for processing under a covered negotiated grievance procedure. The dismissal would be without prejudice to the employee's rights in the negotiated grievance process, including rights to seek Merit Systems Protection Board (MSPB) or Commission review of a final grievance decision where available.

Proposed paragraph (d) would state that, where 5 U.S.C. 7121(d) does not apply, the existence or use of a negotiated grievance procedure does not bar processing under part 1614 unless another statute requires an election of remedies.

Section 1614.302—Mixed Cases: Election and Agency Processing

The proposed rule would revise § 1614.302 in full. Proposed paragraph (a) would define a mixed case as a matter in which an employee or applicant is affected by an action appealable to the MSPB and alleges that a basis for the action was discrimination covered by 5 U.S.C. 7702(a)(1)(B) or another statute requiring treatment under 5 U.S.C. 7702.

Proposed paragraph (b) would define “mixed case complaint” as a mixed case filed with an agency under part 1614 ( printed page 55699) and “mixed case appeal” as a mixed case filed with MSPB.

Proposed paragraph (c) would state the election rule. An employee or applicant may initially file either a mixed case complaint with the agency or a mixed case appeal with MSPB, but not both. The first filing would control, subject to 5 U.S.C. 7702(f) and proposed paragraph (f).

Proposed paragraph (d) would govern agency processing of mixed case complaints. Agencies would process mixed case complaints under subpart A, except that the agency would issue a final decision within 120 days after filing, the complainant would not be entitled to a hearing before a Commission administrative judge, and the final decision would advise the complainant of the right to appeal to MSPB or file a civil action, but not both. If the agency fails to issue a final decision within 120 days, the complainant could appeal to MSPB or file a civil action.

Proposed paragraph (e) would require dismissal of a mixed case complaint, or portion of a complaint, concerning the same matter previously filed as a mixed case appeal with MSPB, unless further agency processing is required by 5 U.S.C. 7702(f) or proposed paragraph (f).

Proposed paragraph (f) would address MSPB dismissals for lack of jurisdiction. Proposed subparagraphs (f)(i) through (f)(iii) lay out clear instructions for individuals to return their cases to the EEO complaint process should the MSPB lack jurisdiction. An individual can return to the EEO complaint process by filing with the agency or Commission, depending on the procedural posture, within 30 days of receipt of the MSPB's dismissal for lack of jurisdiction. Provided the returned matter meets the usual prerequisites, the agency or Commission would process as a non-mixed matter consistent with this part.

Proposed paragraph (g) would clarify that mixed cases first raised under negotiated grievance procedures are governed by § 1614.301, 5 U.S.C. 7121(d), 5 U.S.C. 7702, applicable MSPB regulations, and subpart D as applicable.

Section 1614.303—Commission Consideration of MSPB Decisions in Mixed Cases

The proposed rule would revise § 1614.303 in full. The revised § 1614.303 would simplify Commission review of MSPB decisions by keeping only the essential procedural rule in part 1614: an employee or applicant who receives a final MSPB decision in a mixed case may petition EEOC within 30 days, and the petition must identify the alleged error concerning the discrimination issue.

Proposed paragraph (a) would allow an employee or applicant who receives a final MSPB decision in a mixed case to petition the Commission to consider the Board's decision. The petition would have to be filed within 30 days after receipt of notice of the Board's final decision.

Proposed paragraph (b) would prescribe the petition's form and service requirements. The petition would have to identify the petitioner and MSPB decision and state the alleged error concerning the discrimination issue.

Proposed paragraph (c) would provide that Commission consideration of an MSPB mixed-case decision is governed by 5 U.S.C. 7702, including whether to consider the petition, review of the MSPB record, supplementation, Commission concurrence or disagreement, and referral to MSPB.

Proposed paragraph (d) would provide that MSPB action following a Commission decision that differs from the MSPB decision, certification to the Special Panel, Special Panel proceedings, interim relief, and enforcement are governed by 5 U.S.C. 7702 and applicable MSPB regulations.

Proposed paragraph (e) would state that a Commission determination not to consider an MSPB decision has the effect provided by 5 U.S.C. 7702 and may not be used as evidence on any discrimination issue in a judicial proceeding.

Sections 1614.304 Through 1614.309

The proposed rule would remove and reserve §§ 1614.304 through 1614.309. These provisions would be reserved because the proposed rule would consolidate and streamline the mixed-case rules in revised §§ 1614.302, 1614.303, and 1614.310.

Section 1614.310—Civil Actions in Mixed Cases

The proposed rule would revise § 1614.310 in full. Proposed paragraph (a) would state that an individual with a mixed case may file a civil action in an appropriate United States district court as authorized by 5 U.S.C. 7702 and 7703(b)(2).

Proposed paragraph (b) would identify when a civil action in a mixed case may be filed: within 30 days after receipt of notice of a judicially reviewable action under 5 U.S.C. 7702; after 120 days from filing a mixed case complaint with an agency if there has been no judicially reviewable action and no MSPB appeal; after 120 days from filing a mixed case appeal with MSPB if there has been no judicially reviewable action, subject to 5 U.S.C. 7702(e)(1)(B); or after 180 days from filing a petition with the Commission under § 1614.303 if there has been no final action under 5 U.S.C. 7702(b), (c), or (d).

Proposed paragraph (c) would clarify that § 1614.310 applies only to mixed cases and that civil actions in non-mixed cases are governed by subpart D and applicable law.

Section 1614.401—Appeals to the Commission

The proposed rule would revise § 1614.401 in full. Proposed paragraph (a) would provide that a complainant may appeal an agency's final agency decision.

Proposed paragraph (b) would generally prohibit agency appeals. In other words, an agency may not appeal its own final agency decision.

Proposed paragraph (c) would allow an agency to participate in a complainant's appeal and request referral to an administrative judge under § 1614.406. Such a request would not be an appeal, would not affect the finality of the agency's decision, and would not extend, toll, or restrict the complainant's appeal or civil action rights.

Proposed paragraph (d) would govern grievance appeals. A grievant could appeal a final decision of the agency, arbitrator, or Federal Labor Relations Authority on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues. A grievant could not appeal under part 1614 while the matter remains pending in the negotiated grievance process, arbitration, or before FLRA; where the matter is appealable to MSPB; or where the matter is not subject to 5 U.S.C. 7121(d).

Proposed paragraph (e) would allow a complainant to appeal from an agency determination on alleged agency noncompliance with a settlement agreement or final agency decision under § 1614.504.

Section 1614.402—Time for Appeals to the Commission

The proposed rule would revise § 1614.402 in full. Proposed paragraph (a) would establish a 30-day deadline for appeals described in § 1614.401(a), (d), and (e), measured from receipt of the applicable dismissal, decision, final action, grievance decision, arbitration decision, FLRA decision, or agency compliance determination. The paragraph would clarify that an agency request for administrative judge ( printed page 55700) proceedings under §§ 1614.110, or 1614.403, or 1614.406 is not an appeal and does not create an independent appeal period.

Proposed paragraph (b) would provide that, if the complainant is represented by an attorney of record, the appeal period is calculated from receipt by the attorney; otherwise, it is calculated from receipt by the complainant.

Section 1614.403—How To Appeal

The proposed rule would revise § 1614.403 in full. Proposed paragraph (a) would require appeals to be filed with the Director of the Office of Federal Sector in a digital format acceptable to the Commission, through the EEOC Public Portal, FedSEP where applicable, or another Commission-prescribed method. It provides that the appellant should use EEOC Form 573 or a successor form and identify the decision, action, dismissal, or determination being appealed. A complainant could include a request for administrative judge proceedings under § 1614.406 and would have to explain why such proceedings are necessary or efficient. The Commission may deem the issue waived if a complainant fails to request administrative judge proceedings or fails to support a request with an explanation.

The proposed rule adds paragraph headings to paragraphs (b) and (c) but does not alter their content.

Proposed § 1614.403(d) would update the briefing rule for Commission appeals to conform to the proposed appellate model. It would retain the existing rule that a complainant's supporting statement or brief is due within 30 days after filing the notice of appeal, unless the Commission provides otherwise. Current § 1614.403(d) already uses that 30-day deadline for complainant briefs. The principal change is to remove language governing an agency brief “in support of its appeal.” Under the proposed rule, agencies generally may not appeal their own final agency decisions.

The paragraph also adds a new function for agency briefs: the agency may ask the Commission to refer the matter, or specified claims or issues, to an administrative judge under § 1614.406. The agency must explain why such proceedings are necessary or efficient.

Finally, the proposed paragraph omits the current facsimile-transmission language and 10-page fax limit. That change fits with the proposed digital-filing structure in § 1614.403(a), (e), and (g), under which appeals, briefs, complaint files, final agency decisions, referral requests, and other filings generally would be submitted in a digital format acceptable to the Commission.

Proposed § 1614.403(e) would revise the agency record submission requirement for Commission appeals. The current rule requires an agency to submit the complaint file within 30 days after notice of a complainant's appeal or within 30 days after an agency appeal. The proposed rule would retain the 30-day deadline after notice of a complainant appeal, but would specify that the agency must submit the complete complaint file, any investigative file, the final agency decision, and any agency request for administrative judge proceedings. The revision also removes the reference to agency appeals, consistent with proposed § 1614.401, and treats any agency request for administrative judge proceedings as part of the complainant's appeal record. Finally, the proposed rule would require the agency to identify any portion of the record that is classified, privileged, protected by law, or subject to special handling so that the Commission can protect sensitive information and manage the record appropriately during appellate review.

Proposed paragraph (f) would set deadlines for opposition briefs. Proposed paragraph (g) would require complainants and agencies to submit complaint files, investigative files, final agency decisions, referral requests, appeal briefs, and other filings digitally absent good cause,.

Section 1614.404—Appellate Procedure

The proposed rule would revise § 1614.404 in full. Proposed paragraph (a) would provide that the Office of Federal Sector reviews the complaint file, investigative file, final agency decision or action, any administrative judge referral record, and party submissions. The Commission could supplement the record by letters, memoranda, targeted requests for information, investigation, remand, referral to an administrative judge, or other procedures consistent with part 1614.

Proposed paragraph (b) would require parties providing supplemental information to serve the other party unless the Commission orders otherwise to protect classified, privileged, protected, or specially handled information.

Proposed paragraph (c) would authorize the Commission to require agencies, complainants, or other persons to provide evidence necessary to resolve an appeal. Where a party or Federal employee fails without good cause to respond fully and timely, the Commission could consider the failure in its decision-making and take appropriate nonmonetary procedural or evidentiary action, including adverse inferences, deeming factual issues established, excluding evidence, limiting argument or evidence, or taking other tailored nonmonetary action.

Proposed paragraph (d) would clarify that § 1614.404 does not authorize the Commission to impose monetary sanctions against a Federal agency except to the extent Congress has expressly waived sovereign immunity for that specific monetary remedy.

Section 1614.405—Decisions on Appeals

The proposed rule would revise § 1614.405 in full. Proposed paragraph (a) would allow the Director, Office of Federal Sector, on behalf of the Commission, to issue a written decision setting forth the reasons for the Commission's decision, except that summary affirmance could be used where the appeal presents no material factual dispute, no colorable legal error, and no issue warranting written discussion. A summary affirmance would constitute the Commission's final decision. The Commission would review agency final decisions de novo on the administrative record and decide factual issues by a preponderance of the evidence.

Proposed paragraph (b) would identify available appellate dispositions. The Commission could affirm, reverse, or modify the agency's decision; find discrimination or no discrimination; order appropriate remedies; order targeted supplementation; remand; refer the matter or specified issues to an administrative judge; or take other action consistent with part 1614.

Proposed paragraph (c) would govern final Commission decisions after administrative judge proceedings. The Commission could adopt, modify, or reject the administrative judge's recommended decision, findings, or report. If discrimination is found, the decision would include appropriate remedies and, where appropriate, entitlement to interest, attorney fees, or costs.

Proposed paragraph (d) would set appellate time standards. The Commission would use best efforts to issue a decision within 180 days after receipt of the appeal. If a matter is referred to an administrative judge, the Commission would use best efforts to issue a decision within 90 days after the Office of Federal Sector receives the administrative judge's recommendation ( printed page 55701) and hearing record. These standards would not limit civil action rights.

Proposed paragraph (e) would retain reconsideration standards. A Commission decision would be final unless a timely request for reconsideration is filed. A party could request reconsideration within 30 days, and the Commission could grant reconsideration where the party demonstrates a clearly erroneous interpretation of material fact or law or that the decision will substantially affect agency policies, practices, or operations.

Section 1614.406—Administrative Judge Proceedings

The proposed rule would revise § 1614.406 in full and retitle it “Administrative judge Proceedings.” The proposed rule would replace the current automatic entitlement to request a hearing before an EEOC administrative judge with a targeted referral-based model in which administrative judge proceedings may occur only when authorized by the Commission during its appellate process.

Proposed paragraph (a) would state that a complainant is not entitled to a hearing before an administrative judge.

Proposed paragraph (b) would authorize the Office of Federal Sector, on behalf of the Commission, to refer a complaint, claim, or issue to an administrative judge in an appeal from a final agency decision where the Commission determines that administrative judge proceedings are necessary or efficient to resolve the appeal.

Proposed paragraph (c) would allow complainants to request administrative judge proceedings in their appeal or supporting statement and would allow agencies to request such proceedings in the final agency decision, accompanying notice, or response to an appeal. Any request would have to identify the issues for which proceedings are sought and explain why proceedings are necessary or efficient.

Proposed paragraph (d) would identify grounds for referral, including genuine disputes of material fact or material credibility determinations that cannot be fairly resolved on the appellate record, materially incomplete investigative records where targeted administrative judge proceedings would be more efficient than remand, complex or significant legal or factual issues, likely findings of discrimination requiring further remedial proceedings, agency requests that would materially assist fair and efficient resolution, and other circumstances promoting fair, efficient, and timely resolution.

Proposed paragraph (e) would allow the Commission to limit the referral to specified claims, issues, remedies, witnesses, documents, time periods, or factual questions. The administrative judge would be required to conduct proceedings within the scope of the referral unless the Commission modifies it.

Proposed paragraph (f) would define an administrative judge's authority in referred matters. Within the scope of the referral order, the administrative judge could order limited discovery or record supplementation, require production of evidence, administer oaths, conduct conferences and evidentiary hearings, limit cumulative or burdensome evidence, take nonmonetary procedural or evidentiary measures to address noncompliance, compile the hearing record, issue recommended decisions or findings, and take other actions authorized by the Commission.

Proposed paragraph (g) would clarify that administrative judge proceedings are part of the Commission's appellate review process. Proceedings would be limited to what is necessary or efficient to resolve the appeal.

Proposed paragraph (h) would govern discovery. Parties may not conduct discovery unless authorized by the administrative judge. Any discovery authorized by the administrative judge would be limited to what is necessary and proportional to resolve the matters referred by the Commission.

Proposed paragraph (i) would govern hearings. Hearings would be limited to the claims, issues, remedies, witnesses, documents, time periods, or factual questions identified in the Commission's referral order. The administrative judge would regulate the hearing, limit unnecessary or cumulative evidence, and may use virtual means where appropriate. Attendance would be limited to specified participants and others whose presence is necessary for a fair, efficient, and orderly hearing. Hearings would be closed to the public. The rules of evidence would not apply strictly, and the administrative judge could exclude irrelevant, immaterial, cumulative, repetitious, privileged, protected, unduly burdensome, or out of scope evidence.

Proposed paragraph (j) would require the agency to arrange and pay for a verbatim transcript, unless otherwise ordered by the administrative judge. The paragraph would specify how exhibits and other materials become part of the hearing record, how materials are provided to the parties subject to protective limitations, and how the hearing record is transmitted to the Office of Federal Sector.

Proposed paragraph (k) would provide that, unless the Commission directs otherwise, the administrative judge issues recommended decisions, recommended findings, or reports to the Office of Federal Sector. Proposed paragraph (m) would provide that the Director, Office of Federal Sector issues the final Commission decision under § 1614.405 after considering the administrative judge's input and the administrative record. Proposed paragraph (n) would clarify that referral to an administrative judge does not restrict civil action rights and that filing a civil action terminates Commission processing under § 1614.409.

Section 1614.407—Civil Actions: Title VII, ADEA, Rehabilitation Act, GINA, and PWFA

The proposed rule would revise § 1614.407 to improve organization and conform the civil action provision to the proposed restructuring of part 1614. The revised section adds paragraph headings that separate the principal civil-action rules from related procedural issues: authorization and filing deadlines, withdrawal of an appeal after agency final action, withdrawal of a request for reconsideration, exhaustion of putative class claims, and the effect of an administrative judge referral. This structure makes the provision easier to use by placing each civil action consequence in a discrete paragraph.

The proposed rule also removes references to administrative class complaints and replaces them with language consistent with proposed § 1614.204. Under the proposed rule, a complainant may file a civil action after filing an individual complaint, including an individual complaint that asserted a putative class claim for exhaustion purposes. The revision makes clear that asserting a putative class claim in the administrative process is sufficient to present that claim for purposes of part 1614, but does not decide whether a court will certify a class, permit a class claim to proceed, apply tolling, or find exhaustion satisfied in a later civil action.

Proposed paragraph (d) would address exhaustion of putative class claims. A complainant who follows the withdrawal procedures in paragraphs (b) or (c) would be deemed to have exhausted administrative remedies under part 1614. A complainant who asserts a putative class claim under § 1614.204(b) would be deemed to have presented that putative class claim in the administrative process for purposes of part 1614. The proposed rule would ( printed page 55702) not determine whether a court will certify a class, permit a class claim to proceed, apply tolling, or find administrative exhaustion satisfied in a civil action.

Proposed paragraph (e) would provide that referral to an administrative judge under § 1614.406 does not extend, restrict, or otherwise alter civil action rights.

Section 1614.409—Effect of Filing a Civil Action

The proposed rule would revise § 1614.409 to provide that filing a civil action under § 1614.407, § 1614.408, or § 1614.310 terminates Commission processing of the complaint, appeal, request for reconsideration, and any administrative judge proceedings concerning the same claims. The proposed rule would further provide that a Commission decision issued after the complainant files suit will not be enforceable by the Commission. If suit is filed after an appeal and before a final Commission decision, the complainant should notify the Commission in writing.

Section 1614.501—Remedies and Relief

The proposed rule would amend § 1614.501 to update remedies and relief provisions to conform them to the proposed individual-complaint framework and to comply with the mixed-motive provisions in the Civil Rights Act of 1991.

Section 1614.501 currently applies a “clear and convincing” standard of proof for agencies raising a same-decision defense. See § 1614.501(b)(1)(i); (b)(2); (c)(1); (c)(2). A heightened standard of proof for this limited defense is inconsistent with the Civil Rights Act of 1991. The Act precludes “[an] award of damages or issu[ance] [of] an order requiring any admission, reinstatement, hiring, promotion, or payment” if “a respondent demonstrates the respondent would have taken the same action in the absence of the impermissible motivating factor.” 42 U.S.C. 2000e-5(g)(2)(B). The key word is “demonstrates,” which the Supreme Court has construed under title VII to indicate a “preponderance of the evidence” standard of proof. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003). Accordingly, an agency's same-decision defense is established by showing on a preponderance of the evidence that the agency would have taken the same action absent the impermissible motive. See Porter v. Natsios, 414 F.3d 13, 22 (D.C. Cir. 2005). Establishing the same-decision defense does not avoid liability for the agency, but it does limit the relief and remedies available to the complainant as the prevailing party consistent with Section 2000e-5 of title VII.

Proposed paragraph (a) would clarify that, when an agency or the Commission finds discrimination in an individual case, the agency must provide full relief to the identified applicant or employee. Proposed paragraphs (a)(3) and (a)(4) would refer to each identified complainant who is a victim of discrimination and would require appropriate placement and make-whole payment for lost earnings.

Proposed paragraph (b) would revise applicant relief provisions. Where an applicant has been discriminated against, the agency would offer the position the applicant would have occupied absent discrimination or a substantially equivalent position, unless a preponderance of the evidence establishes the applicant would not have been selected even absent discrimination. The paragraph would specify written-offer, acceptance, retroactive appointment, back pay, interest where sovereign immunity has been waived, service-credit, and declination rules. Where discrimination existed but the applicant would not have been hired even absent discrimination, the agency would still be required to eliminate the discriminatory practice and ensure it does not recur.

Proposed paragraph (c) would revise relief for employees. When discrimination is found, the agency would provide relief, including nondiscriminatory placement with back pay unless a preponderance of the evidence establishes the personnel action would have occurred even absent discrimination. Interest would be included where sovereign immunity has been waived, and back pay liability under title VII or the Rehabilitation Act would be limited to two years before the complaint was filed. If the agency proves the same action would have been taken absent discrimination, the agency still would be required to eliminate the discriminatory practice and prevent recurrence.

Proposed paragraph (d) would codify mitigation principles. The complainant would have a duty to make reasonable efforts to mitigate damages where required by law, and the agency would bear the burden to prove failure to mitigate and the amount by which any award should be reduced.

Proposed paragraph (e) would comprehensively revise attorney fee and cost rules. It would identify fee-eligible claims, compensable legal services, prevailing-party requirements, presumptions and limitations, the lodestar method, reasonable hours, documentation requirements, reasonable rates, treatment of fee matrices, fee agreements and nonprofit or pro bono representation, limited success, unsuccessful claims, fees for fee litigation, enhancements, mixed-motive cases, covered and noncovered claims, timing of compensable services, fee petition procedures, decisions on fee petitions, and costs and witness fees. The proposed rule would emphasize that fees and costs are available only to the extent authorized by statute and must be reasonable, documented, and tied to the relief obtained.

Proposed paragraph (f) would prohibit monetary sanctions against Federal agencies unless Congress has expressly waived sovereign immunity for the specific monetary remedy. The paragraph would clarify that this prohibition does not limit awards of back pay, compensatory damages, equitable relief, attorney fees, or costs otherwise authorized by statute as relief for a proven violation of law.

Section 1614.504—Compliance With Settlement Agreements and Final Agency Decisions

The proposed rule would retitle and amend § 1614.504(c). Proposed paragraph (c) would allow the Commission, before rendering a compliance determination, to request additional information, direct the agency to develop additional information, or refer the matter for administrative judge proceedings under § 1614.406. The Commission would decide compliance based on the written record and any additional information or administrative judge record developed.

If the Commission determines that the agency is not complying with a settlement agreement or final agency decision, and the noncompliance is not attributable to the complainant, the Commission could order compliance. For noncompliance with a settlement agreement, the Commission could order specific implementation or reinstate the complaint for further processing from the point processing ceased. Allegations that subsequent acts of discrimination violate a settlement agreement would be processed as separate complaints under § 1614.106.

Section 1614.505—Interim Relief

The proposed rule would remove and reserve § 1614.505. The current interim-relief provision is tied to agency appeals from administrative judge decisions and temporary or conditional relief pending appeal. Because the proposed rule ( printed page 55703) would eliminate the existing model in which agencies appeal administrative judge decisions and would replace it with final agency decisions followed by Commission appellate review and discretionary administrative judge referral, the interim-relief provision would no longer be necessary in its current form.

Section 1614.602—Reports to the Commission

The proposed rule would amend § 1614.602(a) to require each agency to report to the Commission information concerning the status, processing, and disposition of complaints under part 1614, including investigations, final agency decisions, appeals, compliance proceedings, settlements, administrative judge referrals, and other matters, at the times and in the manner prescribed by the Commission. This change would align agency reporting obligations with the proposed revised complaint-processing and appellate structure.

Section 1614.603—Voluntary Settlement Attempts

The proposed rule would revise § 1614.603 to require each agency to make reasonable efforts to voluntarily settle complaints of discrimination as early as possible in, and throughout, administrative processing. Any settlement would have to be in writing, signed by both parties, and identify the claims resolved. This provision would reinforce early and continuing voluntary resolution while ensuring enforceable written settlement terms.

Section 1614.604—Filing and Computation of Time

The proposed rule would amend § 1614.604(c), (d), and (e) to address digital filing and service. Paragraph (c) would provide that complaints, appeals, requests for reconsideration, requests for administrative judge proceedings, briefs, or other documents filed by complainants using the EEOC Public Portal or by agencies using FedSEP are deemed filed on the date uploaded. Timeliness would be determined based on the time zone from which the document was submitted.

Paragraph (d) would provide that a document transmitted through the Public Portal or FedSEP is deemed received when accessed, or within five days after the document is uploaded, whichever occurs first. When a document is transmitted through email or other digital means, and is not returned as undeliverable, it is deemed received when accessed, or within five days after the document was transmitted, whichever occurs first.

Paragraph (e) would clarify that, for specified provisions, regulatory terms such as file, issue, notify, receive, serve, submit, and transmit include digital transmissions through FedSEP, the EEOC Public Portal, or email.

Section 1614.605—Representation and Official Time

The proposed rule would amend § 1614.605(a) to clarify that the complainant's right to be accompanied, represented, and advised by a representative of choice applies at any stage of processing under part 1614, including filing, investigation, final agency decision, appeal, administrative judge proceedings, reconsideration, compliance, and settlement.

Section 1614.606—Joint Processing and Consolidation of Complaints

The proposed rule would revise § 1614.606 in full. Complaints filed by two or more complainants consisting of substantially similar allegations or relating to the same matter could be jointly processed by the agency or Commission after appropriate notice to the parties. Two or more complaints filed by the same complainant could be consolidated after appropriate notice to the complainant. When complaints are jointly processed or consolidated, the agency would be required to complete the investigation and issue a final agency decision within the time limits in § 1614.108 unless extended under part 1614. Administrative judge proceedings could occur only as provided in § 1614.406. The proposed rule would clarify that joint processing and consolidation do not create a class complaint, class representative, class member, or class-wide adjudication.

Section 1614.607—Delegation of Authority

The proposed rule would revise § 1614.607 to provide that an agency head may delegate authority under part 1614 to one or more designees, except where law, Executive Order, or regulation requires action by the agency head. The proposed rule would also clarify that delegation does not alter the EEO Director reporting relationship required by § 1614.102(b)(4).

Section 1614.701—Purpose and Scope

The proposed rule would revise § 1614.701 to update subpart G. Proposed paragraph (a) would state that subpart G implements the public posting, data, reporting, tracking, and accountability requirements of the No FEAR Act, as amended, including the Cummings Act.

Proposed paragraph (b) would describe the scope of subpart G, including agency and Commission responsibilities to post complaint data and notices on public websites, maintain and report complaint and finding information, provide comparative data, track complaints from filing through resolution, report disciplinary action information following findings of discrimination or retaliation, and maintain required records concerning certain disciplinary actions.

Proposed paragraph (c) would clarify that subpart G's reporting requirements do not create, extend, limit, or otherwise alter rights, remedies, time limits, appeal rights, civil action rights, or complaint-processing requirements under part 1614.

Section 1614.702—Definitions

The proposed rule would revise § 1614.702 to define terms for subpart G. The proposed definitions would include agency or Federal agency, Commission, complaint, investigation, final agency decision or final agency action, final agency decision or action involving a finding of discrimination, administrative judge proceedings, appeal, basis of alleged discrimination, issue of alleged discrimination, finding of discrimination, final finding of discrimination, disciplinary-action decision, class action complaint, and subordinate component. These definitions would support uniform reporting, posting, and tracking under the No FEAR Act and Cummings Act provisions.

Section 1614.703—Manner and Format of Posted Data and Notices

The proposed rule would add or revise § 1614.703 to establish the manner and format for agency postings. Agencies would be required to post information required by subpart G on their public websites in a clear, prominent, and readily accessible location, with a link from the homepage. Data under §§ 1614.704 and 1614.705 would be identified as “No FEAR Act Data,” and notices under § 1614.706(a) would be identified as “Notification of Findings of Discrimination or Retaliation.”

The proposed rule would require postings to be accessible, searchable, downloadable, and compliant with section 508 of the Rehabilitation Act. Agencies would identify the date of the latest update, post separate data for subordinate components, post current fiscal year data cumulatively, report processing times in calendar days, take reasonable steps to ensure searchability, ( printed page 55704) provide URLs to the Commission, and protect personally identifiable information, medical information, confidential settlement information, classified information, privileged information, and other legally protected information.

Section 1614.704—Information To Be Posted—All Federal Agencies

The proposed rule would revise § 1614.704 to specify quarterly public posting requirements for agencies. Not later than 30 days after the end of each fiscal quarter, each agency would post cumulative current fiscal year data regarding complaints filed under part 1614.

The posted data would include the number of complaints filed, number of individual filers, and number of individuals filing two or more complaints. Agencies also would post the number of complaints raising each basis and issue of alleged discrimination or retaliation, including non-EEO bases.

The proposed rule would require posting of agency processing and disposition data, including average time from filing to completion of investigation, average time from filing to final agency decision or other final agency action, the number of dismissals and average pendency before dismissal, and the number of withdrawn complaints.

Agencies also would post findings data, including the number and percentage of final agency decisions or actions involving findings of discrimination or retaliation, the number and percentage by basis and issue, and, for each finding, the date of the finding, affected agency or subordinate component, law violated, and whether a disciplinary-action decision has been made.

The proposed rule also would require pending-inventory and timeliness data, including the number of complaints pending at the beginning of the fiscal year, filed, closed, and pending at the end of the reporting period; the number of older pending complaints and associated filers; the number pending at specified processing steps; and the number in which the agency has not completed the investigation and issued final action within required time limits.

Finally, agencies would post data regarding each class action complaint filed against the agency alleging discrimination or retaliation, including filing date, a general summary of allegations, an estimate of plaintiffs or class members if known, current status including certification status, and the case number for any civil action in which discrimination or retaliation has been found.

Section 1614.705—Comparative Data To Be Posted by Agencies

The proposed rule would revise § 1614.705 to require annual comparative data. No later than January 31 of each year, each agency would post year-end data corresponding to the categories in § 1614.704 for each of the five immediately preceding completed fiscal years, or for the fiscal years for which data are available. Agencies would post a separate figure for each fiscal year included in the comparative data.

Section 1614.706—Cummings Act Notices, Reports, Tracking, and Other Data

The proposed rule would revise § 1614.706 to implement Cummings Act requirements. Proposed paragraph (a) would require the head of an agency subject to a final finding of discrimination or retaliation to post a public notice within 90 days after the final finding. The notice would have to be posted on the agency's public website in a clear and prominent location linked directly from the homepage and remain posted for at least one year.

Proposed paragraph (b) would require the notice to state that a finding of discrimination or retaliation has been made and identify the date of the finding, the date of each discriminatory or retaliatory act, the law violated by each act, and the rights and protections available to Federal employees and applicants under the laws covered by part 1614.

Proposed paragraph (c) would require agencies, not later than 120 days after taking final action or receiving a final Commission decision involving a finding of discrimination or retaliation, to submit a report to the Commission stating whether disciplinary action has been proposed against a Federal employee as a result of the violation and the reasons for any proposed disciplinary action.

Proposed paragraph (d) would require each agency to maintain a system to track each discrimination or retaliation complaint adjudicated through the EEO process from filing through resolution, including whether a disciplinary-action decision has been made as a result of any finding.

Proposed paragraph (e) would require an agency that takes an adverse action covered by 5 U.S.C. 7512 against a Federal employee for discriminatory or retaliatory conduct to include, after all appeals relating to that adverse action have been exhausted, a notation in the employee's personnel record of the adverse action and the reason for it.

Section 1614.707—Data To Be Posted by EEOC

The proposed rule would revise § 1614.707 to update Commission posting obligations. Proposed paragraph (a) would require the Commission, not later than 30 days after the end of each fiscal quarter, to post current fiscal year statistics regarding matters referred to administrative judges under § 1614.406. The required statistics would include the number of appeals involving referrals, the number of complainants whose matters were referred, pending and completed referred matters, completions with and without evidentiary hearings, administrative judge recommendations by disposition, average time from referral to transmission of the recommendation or report, and the number of matters not completed within applicable Commission timeframes.

Proposed paragraph (b) would require the Commission to post quarterly current fiscal year appeals data. The required data would include the number of appeals filed, number of individual appellants, appeals by basis and issue, pending inventory, decided appeals, average time to appellate decision, appellate decisions involving findings of discrimination and their percentage of all appellate decisions, findings by basis and issue, and older pending appeals.

IV. Expected Impact

A. Statement of Need

The Commission proposes to revise 29 CFR part 1614 to modernize and streamline the Federal-sector EEO complaint process, to better align the administrative process with the Commission's resources and institutional role, to clarify the obligations of Federal agencies and complainants, and to implement statutory requirements enacted by the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020. The Cummings Act amended the No FEAR Act to add requirements concerning public notice of final findings of discrimination or retaliation, reporting of disciplinary-action information to the Commission, complaint tracking, personnel-record notations for certain adverse actions, and structural independence of agency EEO programs.

The current part 1614 process requires agencies to conduct pre-complaint counseling, investigate formal complaints, and, upon a ( printed page 55705) complainant's request, transmit matters to the Commission for a hearing before an administrative judge. In practice, however, most matters that enter the administrative judge process do not result in an evidentiary hearing. From fiscal year 2017 through fiscal year 2025, the Commission received, on average, 7,514 hearing requests per year. During that period, 27.1 percent of cases ended in settlement, an average of 2,283 per year; 4 percent proceeded to hearing, an average of 304 per year; and 1.7 percent resulted in a finding of liability against an agency, an average of 128 per year. These data indicate that the current automatic hearing-request model devotes substantial administrative resources to proceedings in which evidentiary hearings occur in only a small minority of cases.

The Commission also has determined that the administrative class complaint process has become a recurring source of delay and complexity. Class complaints require specialized procedures for class certification, notice, discovery, settlement review, class-wide remedial determinations, and individual relief. The Commission's Federal-sector complaint process was designed principally to resolve complaints by identified Federal employees and applicants. The Commission has not had the resources, institutional structure, or specialized capacity to adjudicate large administrative classes effectively. The proposed rule would therefore eliminate administrative class complaints under part 1614 while permitting complainants to assert putative class claims for exhaustion purposes and preserving the ability of agencies and the Commission to jointly process related individual complaints where joint processing would promote fair, efficient, and timely resolution.

The proposed rule also would revise the administrative judge process. Rather than providing an automatic entitlement to a hearing before final agency action, the rule would require agencies to investigate accepted individual complaints and issue final agency decisions within applicable time limits. A complainant could then appeal the agency's final agency decision to the Commission. In an appeal, the Office of Federal Sector, on behalf of the Commission, could decide the matter on the administrative record, order targeted supplementation, remand the matter, or refer a complaint, claim, or issue to an administrative judge when administrative judge proceedings are necessary or efficient to resolve the appeal.

The Commission proposes these changes to reduce unnecessary procedural layers, focus administrative judge resources on matters in which live testimony, credibility determinations, record supplementation, or targeted evidentiary proceedings would materially assist fair resolution, improve the timeliness of Federal-sector EEO adjudication, and preserve civil action rights. The proposed rule also would clarify pleading standards, clarify mixed-case and negotiated-grievance election rules, revise fee and cost standards, prohibit monetary sanctions absent an express waiver of sovereign immunity, and update digital filing and service provisions to reflect the Commission's current use of the EEOC Public Portal and FedSEP. EEOC's FedSEP system allows agencies to submit MD-715 reports, Form 462 complaint-processing data, and complaint files for hearings and appeals, while the EEOC Public Portal allows Federal employees and applicants to file and manage hearing and appeal matters electronically.

B. Costs

The Commission preliminarily estimates the proposed rule would result in approximately $16.1 million in one-time transition costs and approximately $9.2 million in annual recurring costs, before accounting for offsetting savings from eliminating mandatory pre-complaint counseling, eliminating automatic administrative judge proceedings, eliminating administrative class complaint processing, reducing duplicative discovery, and streamlining appeals. Annualized over 10 years, the estimated cost is approximately $11.1 million per year using a 3-percent discount rate and approximately $11.5 million per year using a 7-percent discount rate.

These estimates do not include transfer payments, such as back pay, compensatory damages, attorney fees, costs, or settlement amounts paid to complainants. The estimates also do not quantify expected cost savings, which the Commission expects to be substantial because the proposed rule would eliminate automatic hearing requests, reserve administrative judge proceedings for matters referred by the Commission, remove administrative class complaint processing, and require more focused electronic appeal records.

For purposes of this estimate, the Commission uses 278 Federal agencies and subcomponents as the number of entities expected to incur implementation costs. EEOC's FY 2021 Annual Report on the Federal Workforce relied on data from 278 Federal agencies and subcomponents that filed Form 462 reports. The Commission uses 12,226 formal complaints per year as a proxy for annual complainant volume, based on FY 2021 Federal-sector complaint filings. The Commission uses 4,343 appeals per year as a proxy for annual Federal-sector appeals volume, based on EEOC's FY 2023 appellate intake. The Commission uses 7,514 hearing requests per year as the annual average for FY 2017 through FY 2025.

The Commission estimates Federal employee labor costs using 2026 Washington-Baltimore-Arlington locality rates as a conservative proxy. OPM's 2026 salary table lists hourly rates of $55.62 for GS-12, step 5; $66.14 for GS-13, step 5; $78.15 for GS-14, step 5; and $91.93 for GS-15, step 5. The Commission multiplies those rates by 1.6 to account for benefits and overhead, producing loaded hourly rates of approximately $88.99 for GS-12, $105.82 for GS-13, $125.04 for GS-14, and $147.09 for GS-15. For complainant time, the Commission uses BLS's March 2026 average civilian total compensation rate of $49.32 per hour. For attorney familiarization time, the Commission uses BLS's May 2024 median lawyer wage of $72.67 per hour, multiplied by a 1.46 benefits-and-overhead factor derived from the BLS civilian compensation-to-wage ratio, producing a loaded attorney rate of approximately $106.10 per hour. Dollar amounts are rounded to the nearest dollar.

The Commission estimates that agencies and subcomponents would incur approximately $14,316,878 in one-time transition costs. These costs include rule familiarization, revision of procedures and templates, training, information-technology and website updates, Cummings Act reporting setup, and limited organizational adjustments.

First, the Commission estimates $834,267 for agency rule familiarization. This estimate assumes that each of the 278 agencies and subcomponents would require 24 hours of GS-14 time to review the final rule and identify necessary implementation steps. The calculation is: 278 agencies × 24 hours × $125.04 = $834,267.

Second, the Commission estimates $3,650,385 for revisions to agency procedures, forms, notices, templates, and internal guidance. This estimate assumes that each agency or subcomponent would require 40 hours of GS-14 time, 60 hours of GS-13 time, and 20 hours of GS-12 time. The calculation is: 278 agencies × [(40 hours × $125.04) + (60 hours × $105.82) + (20 hours × $88.99)] = $3,650,385. This category accounts for updates to agency EEO procedures, complaint-filing ( printed page 55706) instructions, reasonable-accommodation denial notices, acknowledgment letters, dismissal templates, final agency decision templates, appeal notices, settlement templates, offer-of-resolution templates, and internal guidance.

Third, the Commission estimates $1,176,763 for initial training of EEO, human resources, counsel, and related personnel. This estimate assumes that each agency or subcomponent would train 20 employees for 2 hours, using the GS-13 loaded hourly rate. The calculation is: 278 agencies × 20 employees × 2 hours × $105.82 = $1,176,763. This category accounts for initial training of staff responsible for complaint intake, investigations, final agency decisions, appeals, compliance, settlement, reasonable accommodation, and No FEAR Act reporting.

Fourth, the Commission estimates $3,743,971 for information-technology, electronic filing, website, and internal case-management updates. This estimate assumes that each agency or subcomponent would require 80 hours of GS-13 time and 40 hours of GS-14 time. The calculation is: 278 agencies × [(80 hours × $105.82) + (40 hours × $125.04)] = $3,743,971. This category accounts for changes to agency electronic filing workflows, complaint-tracking systems, public-facing web pages, internal case-management systems, and record-submission procedures.

Fifth, the Commission estimates $4,733,562 for Cummings Act and No FEAR Act tracking, posting, and reporting setup. This estimate assumes that each agency or subcomponent would require 40 hours of GS-14 time, 80 hours of GS-13 time, and 40 hours of GS-12 time. The calculation is: 278 agencies × [(40 hours × $125.04) + (80 hours × $105.82) + (40 hours × $88.99)] = $4,733,562.

Sixth, the Commission estimates $177,931 for EEO Director reporting structure review and conforming organizational documents. This estimate assumes that approximately 56 agencies or subcomponents—20 percent of the 278 covered entities—would need additional review or conforming changes, and that each such entity would require 8 hours of GS-15 time and 16 hours of GS-14 time. The calculation is: 56 agencies × [(8 hours × $147.09) + (16 hours × $125.04)] = $177,931.

Adding these categories yields total estimated one-time agency transition costs of $14,316,878.

The Commission estimates that agencies and subcomponents would incur approximately $8,098,451 in annual recurring costs. These costs principally reflect preparation of final agency decisions in matters that otherwise would have entered the automatic administrative judge hearing process, submission of more complete appeal records, Cummings Act and No FEAR Act posting and reporting, complaint tracking, and annual refresher training.

The largest estimated recurring cost is $5,348,525 for incremental final agency decision preparation in cases that otherwise would have entered the automatic administrative judge process. This estimate uses 7,514 hearing requests per year and assumes 6 hours per matter, consisting of 4 hours of GS-14 attorney or EEO management time and 2 hours of GS-13 EEO specialist time. The calculation is: 7,514 hearing requests × [(4 hours × $125.04) + (2 hours × $105.82)] = $5,348,525. This estimate is conservative because agencies already expend resources in these cases under the current process, including preparing litigation positions, engaging in motion practice before administrative judges, participating in discovery, responding to administrative judge orders, engaging in settlement discussions, preparing for hearings, and issuing final orders after administrative judge decisions.

The Commission estimates $919,187 for appeal record submission and identification of classified, privileged, protected, or special-handling material. This estimate assumes 4,343 appeals per year and 2 hours of GS-13 time per appeal. The calculation is: 4,343 appeals × 2 hours × $105.82 = $919,187.

The Commission estimates $217,069 for agency requests for administrative judge proceedings. This estimate assumes that agencies will request referral in approximately 10 percent of appeals, or 434 requests per year, and that each request will require 4 hours of GS-14 time. The calculation is: 434 requests × 4 hours × $125.04 = $217,069.

The Commission estimates $668,623 for quarterly No FEAR Act and Cummings Act data postings. This estimate assumes that each of the 278 agencies and subcomponents will make four quarterly postings per year, and that each quarterly posting will require 4 hours of GS-13 time and 2 hours of GS-12 time. The calculation is: 278 agencies × 4 quarters × [(4 hours × $105.82) + (2 hours × $88.99)] = $668,623.

The Commission estimates $176,514 for annual comparative data postings. This estimate assumes that each agency or subcomponent will require 6 hours of GS-13 time annually. The calculation is: 278 agencies × 6 hours × $105.82 = $176,514.

The Commission estimates $110,535 for disciplinary-action reports to the Commission following findings of discrimination or retaliation. This estimate assumes 221 findings per year and 4 hours of GS-14 time per report. The calculation is: 221 findings × 4 hours × $125.04 = $110,535.

The Commission estimates $82,902 for public notices of final findings. This estimate assumes 221 findings per year and 3 hours of GS-14 time per notice. The calculation is: 221 findings × 3 hours × $125.04 = $82,902.

The Commission estimates $272,004 for complaint tracking from filing through resolution. This estimate assumes 12,226 complaints per year and 0.25 hours of GS-12 time per complaint. The calculation is: 12,226 complaints × 0.25 hours × $88.99 = $272,004.

The Commission estimates $8,899 for personnel-record notations for covered adverse actions. This estimate assumes 50 covered adverse actions per year and 2 hours of GS-12 time per action. The calculation is: 50 actions × 2 hours × $88.99 = $8,899.

Finally, the Commission estimates $294,191 for annual refresher training. This estimate assumes that each of the 278 agencies and subcomponents will provide 1 hour of annual refresher training to 10 employees at the GS-13 loaded hourly rate. The calculation is: 278 agencies × 10 employees × 1 hour × $105.82 = $294,191.

Adding these categories yields total estimated annual recurring agency costs of $8,098,451.

The Commission estimates that it would incur approximately $624,874 in one-time transition costs.

The Commission estimates $442,512 for EEOC Public Portal, FedSEP, appellate intake, and data-system updates. This estimate assumes 3,000 hours of GS-13 time and 1,000 hours of GS-14 time. The calculation is: (3,000 hours × $105.82) + (1,000 hours × $125.04) = $442,512.

The Commission estimates $129,450 for revision of Management Directives, public guidance, templates, referral protocols, and training materials. This estimate assumes 800 hours of GS-14 time and 200 hours of GS-15 time. The calculation is: (800 hours × $125.04) + (200 hours × $147.09) = $129,450.

The Commission estimates $52,912 for initial training of Commission staff. This estimate assumes 250 employees receiving 2 hours of training at the GS-13 loaded hourly rate. The calculation is: 250 employees × 2 hours × $105.82 = $52,912.

Adding these categories yields total estimated one-time Commission costs of $624,874. These costs include ( printed page 55707) modifications to FedSEP, the EEOC Public Portal, appeal intake procedures, administrative judge referral protocols, appeal templates, public guidance, internal training materials, and Commission data-posting systems. The proposed rule would require the Commission to process appeals under a revised model, consider requests for administrative judge proceedings, issue referral orders where appropriate, and publish data concerning administrative judge referrals and appeals.

The Commission estimates that it would incur approximately $542,464 in annual recurring costs.

The Commission estimates $271,524 for incremental review of appeals for possible administrative judge referral. This estimate assumes 4,343 appeals per year and 0.5 hours of GS-14 time per appeal. The calculation is: 4,343 appeals × 0.5 hours × $125.04 = $271,524.

The Commission estimates $217,069 for preparation of administrative judge referral orders. This estimate assumes 434 referrals per year and 4 hours of GS-14 time per referral. The calculation is: 434 referrals × 4 hours × $125.04 = $217,069.

The Commission estimates $53,870 for quarterly Commission posting of administrative judge referral and appeal data. This estimate assumes four quarterly postings per year, each requiring 80 hours of GS-13 time and 40 hours of GS-14 time. The calculation is: 4 quarters × [(80 hours × $105.82) + (40 hours × $125.04)] = $53,870.

Adding these categories yields total estimated annual recurring Commission costs of $542,464. This estimate counts only incremental costs associated with the proposed rule. It does not include costs the Commission already incurs to process Federal-sector appeals, manage hearing inventories, review administrative judge decisions, or maintain FedSEP and the Public Portal under the current process. It also does not subtract expected Commission savings from reducing the number of cases assigned to administrative judges under the current automatic hearing request model.

The Commission estimates that complainants and representatives would incur approximately $1,121,849 in one-time transition and familiarization costs and approximately $560,924 in annual recurring familiarization costs.

For one-time complainant familiarization, the Commission estimates $602,986. This estimate assumes 12,226 complainants and 1 hour per complainant at the $49.32 civilian total compensation rate. The calculation is: 12,226 complainants × 1 hour × $49.32 = $602,986.

For one-time representative familiarization, the Commission estimates $518,863. This estimate assumes that 40 percent of the 12,226 complainants will be represented or consult a representative, and that each representative will spend 1 hour becoming familiar with the revised process at the loaded attorney rate of approximately $106.10. The calculation is: 12,226 complainants × 40 percent × 1 hour × $106.10 = $518,863.

Adding those two categories yields total estimated one-time complainant and representative costs of $1,121,849.

For annual complainant familiarization, the Commission estimates $301,493. This estimate assumes 12,226 complainants and 0.5 hours per complainant at the $49.32 civilian total compensation rate. The calculation is: 12,226 complainants × 0.5 hours × $49.32 = $301,493.

For annual representative familiarization, the Commission estimates $259,431. This estimate assumes that 40 percent of complainants will be represented or consult a representative, and that each representative will spend 0.5 hours on familiarization at the loaded attorney rate of approximately $106.10. The calculation is: 12,226 complainants × 40 percent × 0.5 hours × $106.10 = $259,431.

Adding those two annual categories yields total estimated annual complainant and representative costs of $560,924.

The estimate assumes that each complainant will spend one hour during the first year becoming familiar with the revised complaint-filing deadline, complaint-content requirements, amendment rules, final-agency-decision process, appeal procedures, administrative judge referral standard, and civil-action provisions. The estimate further assumes that 40 percent of complainants will be represented or will consult a representative, and that each such representative will spend one hour during the first year becoming familiar with the revised process. For subsequent years, the Commission estimates one-half hour per complainant and one-half hour per represented matter.

These estimates are conservative in some respects because the proposed rule also would simplify the process for complainants by eliminating mandatory EEO Counselor contact, establishing direct filing, clarifying complaint contents, preserving equitable tolling, requiring clearer final agency decisions and appeal notices, and allowing complainants to request administrative judge proceedings on appeal.

The Commission estimates total one-time costs of $16,063,600, consisting of $14,316,878 in one-time agency costs, $624,874 in one-time Commission costs, and $1,121,849 in one-time complainant and representative costs.

The Commission estimates total annual recurring costs of $9,201,839, consisting of $8,098,451 in recurring agency costs, $542,464 in recurring Commission costs, and $560,924 in recurring complainant and representative costs.

Annualized over 10 years, the one-time cost of $16,063,600 equals $1,883,144 per year using a 3-percent discount rate. Adding the estimated annual recurring cost of $9,201,839 yields a total annualized cost of approximately $11,084,983 per year at a 3-percent discount rate.

Using a 7-percent discount rate, the one-time cost of $16,063,600 annualizes to $2,287,095 per year. Adding the estimated annual recurring cost of $9,201,839 yields a total annualized cost of approximately $11,488,934 per year at a 7-percent discount rate.

C. Benefits

The Commission preliminarily expects the proposed rule to produce important administrative, fiscal, and programmatic benefits. The principal expected benefit is a more focused, efficient, and effective Federal-sector complaint process. By replacing the automatic administrative judge hearing-request model with Commission-directed administrative judge referrals on appeal, the proposed rule would allow the Commission to concentrate administrative judge resources on cases in which targeted proceedings are necessary or efficient to resolve material factual disputes, credibility issues, incomplete records, complex issues, or remedial questions.

This reallocation of resources is expected to reduce delay and unnecessary process. Under the current system, thousands of hearing requests are filed each year, but only a small share of cases proceed to hearing. The proposed rule would better align process with actual case outcomes by requiring agencies to complete investigations and issue final agency decisions, while allowing the Commission to refer cases to administrative judges when additional proceedings are warranted. This structure is expected to reduce unnecessary discovery, case-management proceedings, and hearing preparation in cases that can be resolved on the administrative record, through targeted supplementation, through ( printed page 55708) remand, through settlement, or through civil action.

The proposed rule also is expected to improve the quality and usefulness of agency investigations and final agency decisions. Because the final agency decision would become the ordinary completion point for agency processing, agencies would have greater incentives to develop an impartial and appropriate record, address accepted claims, explain dismissals, and provide clear notice of appeal and civil action rights. This, in turn, should improve the record available for Commission appellate review and reduce the need for duplicative proceedings.

Moreover, the proposed rule provides a mechanism for agencies with compelling needs to voluntarily contribute to the hearing process by petitioning the Commission for permission to adopt an internal hearing process as part of its adjudication responsibilities. Where an agency already has a reliable pre-existing hearing structure, an early hearing by the agency is more efficient than a late one by the Commission. And allowing an agency to conduct early hearings would likely improve the quality and accuracy of its final decisions, benefitting both complainants and the agencies themselves.

Granting such a petition would be reserved for agencies with a compelling need for resolutions earlier than what the EEOC can usually provide, for instance agencies for whom drawn out proceedings would interfere with national security interests. The availability of an internal hearing process would be without prejudice to a complainant's right to appeal to the Commission, and approval of an agency's internal hearing process would not prevent the Commission from referring a matter on appeal to one of its own administrative judges.

The proposed elimination of administrative class complaints is expected to produce substantial process benefits. The administrative class mechanism has required extensive Commission and agency resources while often producing delay and procedural uncertainty. The proposed rule would preserve the ability of identified complainants to present their own claims, assert putative class allegations for exhaustion purposes, and seek joint processing of related individual complaints. It would avoid administrative class certification, class notice, class-wide discovery, class settlement review, and class-wide remedial proceedings in a forum that has not proved well suited to large-class adjudication.

The proposed rule also is expected to increase transparency and accountability by implementing the Cummings Act. Public notices of final findings of discrimination or retaliation, disciplinary-action reports to the Commission, complaint tracking, personnel-record notations for certain adverse actions, and expanded public data postings are expected to improve agency accountability and provide Congress, the Commission, Federal employees, applicants, agencies, and the public with more useful information about Federal-sector EEO compliance. The No FEAR Act's existing public data-posting framework was designed to assist Congress, agencies, and the public in assessing whether agencies are meeting their EEO responsibilities.

Other expected benefits include increased clarity, predictability, and consistency. The proposed revisions to mixed-case and negotiated-grievance provisions would clarify election rules. The proposed revisions to attorney-fee standards would provide more detailed guidance concerning prevailing-party status, reasonable hours, reasonable rates, fee documentation, fee matrices, limited success, unsuccessful claims, fee litigation, and covered versus noncovered claims. These clarifications should reduce disputes over procedure, remedies, attorney fees, and sanctions.

The proposed digital-filing provisions are expected to reduce mailing costs, improve timeliness, increase transparency, and facilitate electronic record management. The Commission has already expanded use of the EEOC Public Portal and FedSEP for Federal-sector hearings, appeals, document exchange, and case tracking. Codifying and expanding digital-filing rules should reduce uncertainty over filing dates, receipt dates, service, and electronic transmissions.

D. Alternatives Considered

The Commission considered taking no regulatory action. Under that alternative, the existing Federal-sector complaint process would remain in place, including mandatory pre-complaint counseling, the automatic option to request a hearing before an administrative judge, administrative class complaint procedures, existing remedial provisions, and the current No FEAR Act regulations. The Commission rejected this alternative because it would not implement the Cummings Act fully, would not address recurring delay and resource-allocation concerns in the counseling and administrative judge processes, and would not address the Commission's experience with administrative class complaints.

The Commission considered retaining the automatic entitlement to request an administrative judge hearing but imposing more stringent discovery limits, case-management standards, summary-judgment procedures, or hearing-selection criteria. The Commission rejected that alternative because it would leave in place the basic incentive to route large numbers of cases to the administrative judge process even though very few cases benefit from a hearing. The Commission preliminarily believes that a referral-based model better aligns administrative judge proceedings with the cases in which those proceedings are necessary or efficient.

The Commission considered eliminating administrative judge proceedings entirely and resolving all appeals on the written record, subject to remand to the agency or targeted supplementation. The Commission rejected that alternative because some appeals present material factual disputes, credibility issues, incomplete records, complex or recurring issues, or remedial questions that may be resolved more fairly and efficiently through limited proceedings before an administrative judge. The proposed rule therefore preserves administrative judge proceedings as a targeted appellate tool.

The Commission considered retaining administrative class complaints while revising certification standards, discovery rules, settlement-approval procedures, or remedial procedures. The Commission rejected that alternative because the principal difficulties with administrative class complaints arise from the very nature of large-class adjudication. The Commission preliminarily believes that identified individual complaints, putative class assertions for exhaustion purposes, and joint processing of related individual claims provide a more administrable framework that preserves individual rights while avoiding the burdens and delays of administrative class adjudication.

The Commission considered creating a specialized administrative class unit or separate class adjudication process. The Commission rejected that alternative because it would require substantial new staffing, specialized expertise, data systems, case-management capacity, and funding. The Commission preliminarily believes that its limited resources should be directed toward timely resolution of individual complaints, targeted administrative judge referrals, and effective oversight of agency EEO programs.

The Commission considered retaining mandatory pre-complaint counseling ( printed page 55709) while making other changes to the complaint process. The proposed rule instead would remove § 1614.105 and establish a 60-day period for filing written complaints. The Commission preliminarily believes that direct filing will reduce delay, simplify procedural requirements, and avoid disputes over counseling deadlines while preserving agency obligations to provide ADR and make reasonable efforts to resolve complaints informally.

The Commission considered imposing mandatory ADR. The Commission rejected that alternative because ADR is most effective when participation is appropriate for the circumstances of the case and consistent with voluntary resolution principles. The proposed rule would continue to require agencies to establish or make available ADR programs and to make reasonable efforts to settle complaints as early as possible and throughout processing.

The Commission requests comment on these and other alternatives, including whether particular provisions should be phased in, whether additional transition rules are needed, and whether any alternative would achieve the Commission's objectives at lower cost or with greater benefit.

E. Reliance Interests

The Commission recognizes that Federal agencies, complainants, agency representatives, complainants' representatives, administrative judges, and other participants have structured their practices around the existing part 1614 process. Existing reliance interests include agency procedures for pre-complaint counseling, formal complaints, investigations, hearing requests, administrative judge proceedings, agency final orders, class complaints, settlement agreements, fee petitions, appeals, compliance proceedings, and No FEAR Act postings.

The Commission has considered these reliance interests in developing the proposed rule. The proposed rule preserves core features of the Federal-sector EEO administrative process, including agency investigation of accepted complaints, final agency decisions, Commission appellate review, representation rights, settlement enforcement, civil action rights, remedies for proven discrimination, and attorney-fee awards where authorized by statute. The proposal also preserves administrative judge proceedings when the Commission determines that such proceedings are necessary or efficient to resolve an appeal.

The proposed rule addresses reliance interests associated with class complaints by permitting complainants to assert putative class claims for exhaustion purposes and by preserving joint processing of related individual complaints. The Commission recognizes that some complainants and representatives may have relied on existing administrative class procedures. The Commission preliminarily concludes, however, that reliance on a particular administrative mechanism does not outweigh the Commission's interest in adopting a more administrable process that preserves individual claims, allows putative class allegations to be presented for exhaustion purposes, and leaves questions of class certification to the courts in subsequent civil actions.

The Commission also recognizes reliance interests associated with existing administrative judge hearing procedures. The proposed rule mitigates those interests by preserving Commission authority to refer matters to administrative judges when needed, preserving civil action rights, requiring agencies to issue final agency decisions, and permitting complainants and agencies to request administrative judge proceedings on appeal.

The Commission does not intend the proposed rule to reopen final Commission decisions, final agency decisions, other final agency actions, settlement agreements, or court judgments that became final before the effective date of a final rule. The Commission requests comment on whether the final rule should include additional transition provisions for complaints, hearing requests, appeals, class complaints, compliance matters, or fee petitions pending on the effective date.

F. Severability

The Commission intends that the provisions of this rule be severable. The proposed rule contains several distinct reforms, including revisions to agency EEO program requirements, complaint filing, investigations, final agency decisions, administrative judge proceedings, class complaints, mixed cases, appeals, remedies, settlement compliance, digital filing, consolidation, and No FEAR Act/Cummings Act reporting. Each of these provisions serves independent regulatory purposes and can operate independently of the others.

If any provision of the final rule, or the application of any provision to any person, agency, complaint, claim, issue, or circumstance, is held invalid or stayed, the Commission intends that the remaining provisions and applications remain in effect to the fullest extent permitted by law. For example, the provisions implementing the Cummings Act can operate independently of the provisions governing administrative judge referrals; and the provisions governing individual complaint filing can operate independently of the provisions governing attorney fees.

The Commission would have adopted the remaining provisions of this rule even if any particular provision were held invalid. The Commission therefore intends that any reviewing court give maximum effect to the rule's severability and preserve all valid provisions and applications.

V. Regulatory Compliance

A. Regulatory Review

Executive Orders 12866 and 13563 direct agencies to assess the benefits and costs of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits to the extent permitted by law. Executive Order 13563 reaffirms Executive Order 12866 and emphasizes quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14192 directs agencies to reduce regulatory costs and requires offsetting certain new regulatory costs through elimination of existing regulatory costs, consistent with law. Executive Order 14215 requires proposed and final significant regulatory actions, including those of independent agencies, to be submitted to the Office of Information and Regulatory Affairs (OIRA) before publication in the Federal Register .

This proposed rule has been reviewed in accordance with Executive Orders 12866 and 13563. The proposed rule would revise procedures governing Federal-sector EEO complaint processing and agency EEO program obligations. It would apply principally to Federal agencies, Federal employees, and applicants for Federal employment. It would not directly regulate private employers, consumers, markets, or State, local, or Tribal governments.

The Commission preliminarily estimates that this proposed rule is not likely to have an annual effect on the economy of $100 million or more or otherwise meet the threshold for a significant economic effect under Executive Order 12866 section 3(f)(1). The Commission recognizes the proposed rule raises important legal and policy issues concerning the structure of the Federal-sector EEO administrative process. The proposed rule has been submitted to OIRA for review under Executive Order 12866. OIRA has ( printed page 55710) determined the rule is otherwise significant under section 3(f).

For purposes of Executive Order 14192, the Commission preliminarily expects that the proposed rule would not be an Executive Order 14192 regulatory action. The proposed rule would remove or reduce several procedural burdens, including the automatic administrative judge hearing-request process, administrative class complaint procedures, and certain monetary-sanction and fee-related consequences. The proposed rule also would impose or clarify certain agency obligations, including final agency decision requirements and Cummings Act reporting, tracking, posting, and personnel-record-notation requirements. Many of those obligations implement statutory requirements imposed by the Cummings Act.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601 through 612, requires agencies to consider the economic impact of a rule on small entities and, where required, to prepare an initial regulatory flexibility analysis unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The proposed rule would govern Federal-sector EEO complaint processing and agency EEO program obligations. It would apply to Federal agencies and to Federal employees and applicants for Federal employment. It would not directly regulate small businesses, small organizations, or small governmental jurisdictions. The proposed rule therefore would not impose compliance obligations on a substantial number of small entities.

Accordingly, the Commission certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. An initial regulatory flexibility analysis is not required. The Commission invites comment on this certification and on any potential indirect effects on small entities.

C. Federalism

The Commission has reviewed this proposed rule under Executive Order 13132, “Federalism.” The proposed rule would govern Federal-sector EEO complaint processing and Federal agency EEO program obligations. It would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

The proposed rule would not impose requirements on State or local governments and would not preempt State law. Accordingly, the Commission has determined that the proposed rule does not have federalism implications within the meaning of Executive Order 13132.

D. Civil Justice Reform

The Commission has reviewed this proposed rule under Executive Order 12988, “Civil Justice Reform.” The proposed rule is intended to provide a clear, administrable framework for Federal-sector EEO complaint processing; reduce ambiguity; clarify filing, investigation, final decision, appeal, administrative judge, class-claim, mixed-case, remedies, and fee standards; and reduce unnecessary procedural disputes.

The proposed rule specifies the administrative process that applies to individual Federal-sector discrimination and retaliation complaints, preserves civil action rights as provided by statute, and clarifies the effect of filing a civil action on administrative processing. The proposed rule also clarifies that it does not determine whether a court will certify a class, permit a class claim to proceed, apply tolling, or find administrative exhaustion satisfied in a civil action.

The Commission has endeavored to draft the proposed rule to minimize litigation, eliminate ambiguity, and provide clear legal standards. The proposed rule would not have retroactive effect except to the extent expressly provided in a final rule or required by law.

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 through 1538, requires agencies to assess the effects of Federal mandates on State, local, and Tribal governments and the private sector under specified circumstances.

This proposed rule would govern Federal-sector EEO complaint processing and Federal agency EEO program responsibilities. It would not impose enforceable duties on State, local, or Tribal governments or on the private sector. The proposed rule would not result in expenditures by State, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, adjusted for inflation. The proposed rule also would not significantly or uniquely affect small governments.

Accordingly, the Commission has determined that no written statement is required under the Unfunded Mandates Reform Act.

F. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 through 808, requires agencies to submit a rule report to each House of Congress and to the Comptroller General before a final rule may take effect. The Commission will submit the required report and other information to Congress and the Comptroller General before any final rule takes effect.

The Commission will also submit the final rule to OIRA for a determination whether the rule is a “major rule” under 5 U.S.C. 804(2). The Commission preliminarily expects that the rule would not be a major rule because it is not expected to result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. The Commission requests comment on this preliminary assessment.

G. Paperwork Reduction Act

The Paperwork Reduction Act of 1995, 44 U.S.C. 3501 through 3521, requires agencies to consider the burden of information collections and obtain approval from the Office of Management and Budget where required. A person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

The proposed rule contains provisions that relate to complaint filing, agency acknowledgment of complaints, final agency decisions, appeals, requests for administrative judge proceedings, agency submission of complaint files, No FEAR Act data postings, Cummings Act notices, disciplinary-action reports to the Commission, complaint tracking, personnel-record notations, and Commission posting of appeal and administrative judge referral data. Some of these provisions modify existing Federal-sector EEO complaint-processing and reporting practices, including agency reporting through FedSEP and annual complaint-processing data reported through EEOC Form 462. EEOC's FedSEP system is currently used by agencies to submit MD-715 reports, Form 462 complaint-processing data, and complaint files for hearings and appellate cases.

To the extent the proposed rule modifies an existing approved collection of information or creates a new collection of information subject to the Paperwork Reduction Act, the Commission will submit the required ( printed page 55711) information collection request, revision request, or other appropriate request to OMB. The Commission preliminarily expects that much of the information required by the proposed rule is already collected, maintained, or reported by agencies under existing part 1614, the No FEAR Act, the Cummings Act, FedSEP reporting, EEOC Form 462 reporting, agency complaint files, and agency public data-posting practices.

For the reasons stated in the preamble, the Equal Employment Opportunity Commission proposes to amend 29 CFR part 1614 as follows:

1. The authority citation for part 1614 is revised to read as follows:

Authority: 5 U.S.C. 2301 note, 29 U.S.C. 206(d), 633a, 791, and 794a; 42 U.S.C. 2000e-16, 2000ff-6(e), and 2000gg-2(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR, 1969 Comp., p. 133; E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg. Plan No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.

2. Throughout part 1614, remove the words “Office of Federal Operations” wherever they appear and add, in their place, the words “Office of Federal Sector”.

3. Amend § 1614.102 by revising paragraphs (a)(8), (b)(2), (b)(4), (b)(6), (b)(7), and (c)(4), adding paragraphs (a)(9) and (b)(8), and renumbering current paragraphs (a)(9) through (a)(13) to read as follows:

4. Amend § 1614.103 by revising paragraphs (a), (b)(3), (b)(6), and (d)(2) to read as follows:

5. Amend § 1614.104 by revising paragraph (a) and adding paragraph (c) to read as follows:

6. Remove and reserve § 1614.105.

7. Amend § 1614.106 to read as follows:

8. Amend § 1614.107 by revising paragraph (a) introductory text, paragraphs (a)(1), (a)(2), and (a)(5), and paragraph (b) to read as follows:

9. Revise § 1614.108 to read as follows:

10. Rename and revise § 1614.109 to read as follows:

11. Rename and revise § 1614.110 to read as follows:

12. Amend § 1614.203 by revising paragraph (d)(3)(iii)(D) to read as follows:

13. Revise § 1614.204 to read as follows:

14. Revise § 1614.301 to read as follows:

15. Revise § 1614.302 to read as follows:

16. Revise § 1614.303 to read as follows:

17. Remove and reserve §§ 1614.304, 1614.305, 1614.306, 1614.307, 1614.308, and 1614.309.

18. Revise § 1614.310 to read as follows:

19. Revise § 1614.401 to read as follows:

20. Revise § 1614.402 to read as follows:

21. Amend § 1614.403 to read as follows:

22. Amend § 1614.404 to read as follows:

23. Amend § 1614.405 to read as follows:

24. Amend § 1614.406 to read as follows:

25. Revise § 1614.407 to read as follows:

26. Amend § 1614.409 to read as follows:

27. Amend § 1614.501 by revising paragraph (a) introductory text, paragraphs (a)(3) and (4), paragraphs (b)(1)(i), (ii), and (iii), paragraph (b)(2), paragraph (c) introductory text, paragraphs (c)(1) and (2), paragraph (d) and paragraph (e), and adding paragraphs (f) and (g) to read as follows:

28. Amend § 1614.504 by revising paragraph (c) to read as follows:

29. Remove and reserve § 1614.505.

30. Amend § 1614.602 by revising paragraph (a) to read as follows:

31. Amend § 1614.603 to read as follows:

32. Amend § 1614.604 by revising paragraphs (c), (d), and (e) to read as follows:

33. Amend § 1614.605 by revising paragraph (a) to read as follows:

34. Revise § 1614.606 to read as follows:

35. Amend § 1614.607 to read as follows:

36. Amend § 1614.701 to read as follows:

37. Amend § 1614.702 to read as follows:

38. Amend § 1614.703 to read as follows:

39. Amend § 1614.704 to read as follows:

40. Amend § 1614.705 to read as follows:

41. Amend § 1614.706 to read as follows:

42. Amend § 1614.707 to read as follows:

91 FR 55690