Federal Sector Equal Employment Opportunity

Issuing agencies

Abstract

The Equal Employment Opportunity Commission (EEOC) proposes revising Federal sector EEO complaint rules to streamline processing, improve effectiveness, and implement the Cummings Act. The rule would end mandatory pre complaint counseling and remove the option to request administrative judge proceedings before a final agency decision. Complainants could seek such proceedings only on appeal, and the EEOC would order them only when necessary or efficient. The rule would bar administrative class complaint adjudication while preserving putative class assertions for exhaustion. The rule also allows joint processing of related individual complaints and updates pleading standards, mixed case procedures, attorney fee provisions, and required reports.

Full Text

<html>
<head>
<title>Federal Register, Volume 91 Issue 166 (Friday, August 28, 2026)</title>
</head>
<body><pre>
[Federal Register Volume 91, Number 166 (Friday, August 28, 2026)]
[Proposed Rules]
[Pages 55690-55727]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-17641]



[[Page 55689]]

Vol. 91

Friday,

No. 166

August 28, 2026

Part II





Equal Employment Opportunity Commission





-----------------------------------------------------------------------





29 CFR Part 1614





Federal Sector Equal Employment Opportunity; Proposed Rule

Federal Register / Vol. 91, No. 166 / Friday, August 28, 2026 / 
Proposed Rules

[[Page 55690]]


-----------------------------------------------------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AB46


Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Equal Employment Opportunity Commission (EEOC) proposes 
revising Federal sector EEO complaint rules to streamline processing, 
improve effectiveness, and implement the Cummings Act. The rule would 
end mandatory pre complaint counseling and remove the option to request 
administrative judge proceedings before a final agency decision. 
Complainants could seek such proceedings only on appeal, and the EEOC 
would order them only when necessary or efficient. The rule would bar 
administrative class complaint adjudication while preserving putative 
class assertions for exhaustion. The rule also allows joint processing 
of related individual complaints and updates pleading standards, mixed 
case procedures, attorney fee provisions, and required reports.

DATES: Comments must be received on or before September 28, 2026.

ADDRESSES: You may submit comments for this proposed rule within the 
Federal eRulemaking Portal at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Follow the 
instructions for submitting comments.
    All comments must be received by the end of the comment period for 
them to be considered. All comments and other submissions received 
generally will be posted on the internet at regulations.govas they are 
received, without change, including any personal information provided. 
However, EEOC retains discretion to redact personal or sensitive 
information, including but not limited to personal or sensitive 
information pertaining to third parties, where appropriate.
    A summary of this rule may be found in the docket for this 
rulemaking at <a href="http://www.regulations.gov">www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Raymond Peeler, Associate Legal 
Counsel, Equal Employment Opportunity Commission, (202) 921-3240, 
<a href="/cdn-cgi/l/email-protection#bcceddc5d1d3d2d892ccd9d9d0d9cefcd9d9d3df92dbd3ca"><span class="__cf_email__" data-cfemail="c7b5a6beaaa8a9a3e9b7a2a2aba2b587a2a2a8a4e9a0a8b1">[email&#160;protected]</span></a>.

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. 
See Executive 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. 
Sec.  2000e-16(d).
    Authority to regulate this new administrative process was placed in 
the Civil Service Commission--not the EEOC. Id. Sec.  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. See 64 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

[[Page 55691]]

complaints final subject to appeal. See 77 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\
---------------------------------------------------------------------------

    \1\ This figure does not include time spent by the agency during 
counseling, investigation, implementing or appealing an 
administrative judge's decision, etc. Overall processing time for a 
complaint will therefore be even longer.
---------------------------------------------------------------------------

    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

[[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.

[[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 Sec.  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

[[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 Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  1614.204 and 1614.606, but that 
putative class claims may be asserted only as provided in Sec.  
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

[[Page 55695]]

Office, and Government Accountability Office.

Section 1614.104--Agency Processing

    The proposed rule would make conforming changes to Sec.  
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 Sec.  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 Sec.  
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 Sec.  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

[[Page 55696]]

administrative judge, and the right to file a civil action.

Section 1614.107--Dismissals of Complaints

    The proposed rule would amend Sec.  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 Sec.  
1614.103, fails to satisfy the pleading requirements of Sec.  
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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  1614.109. 
Standards for administrative judge proceedings, including hearings, 
would be moved to Sec.  1614.406 under Subpart D--Appeals and Civil 
Actions, infra. Proposed Sec.  1614.109 would solely address offers of 
resolutions. The current offer-of-resolution procedure is contained in 
Sec.  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.
---------------------------------------------------------------------------

    \2\ See, e.g., EEOC, The Offer of Resolution Settlement 
Procedure in the Federal Sector (March 2023), available at <a href="https://www.eeoc.gov/offer-resolution-settlement-procedure-federal-sector">https://www.eeoc.gov/offer-resolution-settlement-procedure-federal-sector</a> 
(describing the existing offer-of-resolution procedure as ``an often 
overlooked tool'' and stating that the EEOC has seen ``few appeal 
filings'' raising the procedure since its inception in 1999).

---------------------------------------------------------------------------

[[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 Sec.  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 Sec.  1614.110 to reflect that the 
final agency decision is the ordinary adjudication mechanism for all 
complaints. The proposed rule would revise Sec.  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 Sec.  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 Sec.  1614.108(e). Alternatively, the agency 
shall issue an immediate final agency decision dismissing the entire 
complaint for the reasons stated in Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 
Sec.  1614.203(d)(3)(iii)(D) requires agencies to notify individuals 
denied reasonable accommodation that they must initiate contact with an 
EEO Counselor under Sec.  1614.105 within 45 days. Because the proposed 
rule would remove Sec.  1614.105 and establish direct filing of 
complaints under Sec.  1614.106, the proposed amendment would instead 
require the denial notice to explain that the individual may file a 
complaint under Sec.  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 Sec.  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

[[Page 55698]]

processed together under Sec.  1614.204 or Sec.  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 Sec.  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 Sec.  
1614.204 and Sec.  1614.606. Complaints processed together would remain 
individual complaints, and Sec.  1614.204 would supplement the 
consolidation and joint-processing authority in Sec.  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 Sec. Sec.  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 Sec. Sec.  1614.304 through 1614.309 and consolidate the 
operative rules into revised Sec. Sec.  1614.301, 1614.302, 1614.303, 
and 1614.310.
    Starting with negotiated grievance procedures, the proposed rule 
would revise Sec.  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 Sec.  
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 Sec.  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

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

Section 1614.310--Civil Actions in Mixed Cases

    The proposed rule would revise Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  1614.504.

Section 1614.402--Time for Appeals to the Commission

    The proposed rule would revise Sec.  1614.402 in full. Proposed 
paragraph (a) would establish a 30-day deadline for appeals described 
in Sec.  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

[[Page 55700]]

proceedings under Sec. Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[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 Sec.  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 Sec.  
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 Sec.  1614.409.

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

    The proposed rule would revise Sec.  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 
Sec.  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 Sec.  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

[[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 Sec.  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 Sec.  1614.409 to provide that 
filing a civil action under Sec.  1614.407, Sec.  1614.408, or Sec.  
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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  
1614.106.

Section 1614.505--Interim Relief

    The proposed rule would remove and reserve Sec.  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

[[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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  1614.108 unless extended under 
part 1614. Administrative judge proceedings could occur only as 
provided in Sec.  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 Sec.  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 Sec.  1614.102(b)(4).

Section 1614.701--Purpose and Scope

    The proposed rule would revise Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  1614.704 and 1614.705 would be 
identified as ``No FEAR Act Data,'' and notices under Sec.  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,

[[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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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

[[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 x 24 hours x $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 x [(40 hours x $125.04) + (60 
hours x $105.82) + (20 hours x $88.99)] = $3,650,385. This category 
accounts for updates to agency EEO procedures, complaint-filing

[[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 x 20 employees x 2 hours x $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 x [(80 hours x $105.82) + (40 hours x 
$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 x [(40 hours x $125.04) + (80 hours x $105.82) + (40 hours 
x $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 x [(8 hours 
x $147.09) + (16 hours x $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 x [(4 hours x $125.04) + (2 hours x $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 x 2 
hours x $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 x 4 hours x $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 x 4 quarters x 
[(4 hours x $105.82) + (2 hours x $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 x 6 hours x $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 x 4 hours x $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 x 3 hours x 
$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 x 0.25 hours x $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 x 2 hours x $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 x 10 employees x 1 hour x $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 x $105.82) + (1,000 hours x $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 x $125.04) + 
(200 hours x $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 x 2 hours x $105.82 = $52,912.
    Adding these categories yields total estimated one-time Commission 
costs of $624,874. These costs include

[[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 x 0.5 hours x $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 x 
4 hours x $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 x [(80 hours 
x $105.82) + (40 hours x $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 x 1 hour x $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 x 40 percent x 1 hour x $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 x 0.5 hours x $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 x 40 
percent x 0.5 hours x $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

[[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

[[Page 55709]]

while making other changes to the complaint process. The proposed rule 
instead would remove Sec.  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

[[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

[[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.

List of Subjects in 29 CFR Part 1614

    Administrative practice and procedures; Equal employment 
opportunity, Government employees, Individuals with disabilities, Race 
discrimination, Religious discrimination, Sex discrimination.

Equal Employment Opportunity Commission.
Andrea Lucas,
Chair.

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

PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

0
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.

0
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''.

Subpart A--Agency Program To Promote Equal Employment Opportunity

0
3. Amend Sec.  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:


Sec.  1614.102  Agency program.

    (a) * * *
    (8) Provide reasonable accommodation to qualified applicants and 
employees with disabilities as required by Section 501 of the 
Rehabilitation Act, unless the accommodation would impose an undue 
hardship on the operation of the agency's program;
    (9) Provide reasonable accommodation to qualified applicants and 
employees for pregnancy, childbirth, or related medical conditions as 
required by the Pregnant Workers Fairness Act, unless the accommodation 
would impose an undue hardship on the operation of the agency's 
program;
    (10) Provide recognition to employees, supervisors, managers and 
units demonstrating superior accomplishment in equal employment 
opportunity;
    (11) Establish a system for periodically evaluating the 
effectiveness of the agency's overall equal employment opportunity 
effort;
    (12) Provide the maximum feasible opportunity to employees to 
enhance their skills through on-the-job training, work-study programs 
and other training measures so that they may perform at their highest 
potential and advance in accordance with their abilities;
    (13) Inform its employees and recognized labor organizations of the 
affirmative equal employment opportunity policy and program and enlist 
their cooperation; and
    (14) Participate at the community level with other employers, with 
schools and universities and with other public and private groups in 
cooperative action to improve employment opportunities and community 
conditions that affect employability.
* * * * *
    (b) * * *
    (2) Establish or make available an alternative dispute resolution 
program to be available before and after a complaint is filed.
* * * * *
    (4) Designate a Director of Equal Employment Opportunity (EEO 
Director) and such other personnel as may be necessary to carry out the 
functions described in this part in all organizational units of the 
agency and at all agency installations. The EEO Director shall report 
directly to, and be under the immediate supervision of, the agency 
head. A reporting relationship to an intermediary official, including a 
deputy, chief operating officer, chief human capital officer, general 
counsel, or equivalent official, does not satisfy this requirement;
* * * * *
    (6) Ensure that full cooperation is provided by all agency 
employees to agency EEO personnel in the processing and resolution of 
complaints, investigations, final agency decisions, appeals, compliance 
proceedings, and other proceedings under this part, and that full 
cooperation is provided to the Commission in the course of appeals, 
compliance proceedings, and other matters under this part, including 
providing access to personnel records and other agency records when 
required in connection with an investigation, appeal, compliance 
proceeding, or other proceeding under this part; and
    (7) Publicize to all employees, and maintain in a current and 
readily accessible format, the name, title, business telephone number, 
business email address, and business mailing address of the agency EEO 
Director; instructions for requesting pre-complaint technical 
assistance; instructions for filing a complaint under this part, 
including any electronic portal, email address, mailing address, forms, 
or other approved filing method; and a notice of applicable filing 
deadlines and procedural requirements. Agencies must make this 
information available through appropriate employee communications 
channels, including electronic means, and must ensure that the 
information is accessible to employees in headquarters, field, remote, 
and other duty locations.
    (8) Maintain a process for employees and applicants to request and 
receive appropriate and effective pre-complaint technical assistance.
    (c) * * *
    (4) Providing for the receipt and processing of individual 
complaints of discrimination, including complaints that assert putative 
class claims for exhaustion purposes under Sec.  1614.204(b) and 
complaints jointly processed under Sec. Sec.  1614.204 and 1614.606; 
and
* * * * *
0
4. Amend Sec.  1614.103 by revising paragraphs (a), (b)(3), (b)(6), and 
(d)(2) to read as follows:


Sec.  1614.103  Complaints of discrimination covered by this part.

    (a) Individual complaints of employment discrimination and 
retaliation prohibited by title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. 2000e et seq. (discrimination on the basis of race, 
color, religion, sex, or national origin); the Age Discrimination in 
Employment Act, 29 U.S.C. 621 et seq. (discrimination on the basis of 
age when the aggrieved individual is at least 40 years of age); the 
Rehabilitation Act, 29 U.S.C. 791 et seq. (discrimination on the basis 
of disability); the Equal Pay Act, 29 U.S.C. 206(d) (sex-based wage 
discrimination); the Genetic Information Nondiscrimination Act, 42 
U.S.C. 2000ff et seq. (discrimination on the basis of genetic 
information); or the Pregnant Workers Fairness Act, 42 U.S.C. 2000gg et 
seq. (discrimination on the basis of pregnancy, childbirth, or related 
medical conditions), shall be processed in accordance with this part.

[[Page 55712]]

Complaints alleging retaliation prohibited by these statutes are 
considered complaints of discrimination for purposes of this part. 
Complaints may be jointly processed as provided in Sec. Sec.  1614.204 
and 1614.606. Putative class claims may be asserted only as provided in 
Sec.  1614.204(b) and shall not be processed as class complaints under 
this part.
    (b) * * *
    (3) The United States Postal Service, Postal Regulatory Commission, 
and Tennessee Valley Authority;
* * * * *
    (6) The Government Publishing Office, except for complaints under 
the Rehabilitation Act; and
* * * * *
    (d) * * *
    (2) Employees of the Government Accountability Office;
* * * * *
0
5. Amend Sec.  1614.104 by revising paragraph (a) and adding paragraph 
(c) to read as follows:


Sec.  1614.104  Agency processing.

    (a) Each agency subject to this part shall adopt procedures for 
processing individual complaints of discrimination, including 
complaints that assert putative class claims for exhaustion purposes 
under Sec.  1614.204(b) and complaints jointly processed under 
Sec. Sec.  1614.204 and 1614.606, that are consistent with Sec. Sec.  
1614.106 through 1614.110 and Sec.  1614.204 and all other applicable 
provisions of this part, along with the instructions for complaint 
processing contained in the Commission's Management Directives.
* * * * *
    (c) An agency may petition the Commission for permission to adopt 
an internal hearing process as part of its individual complaint 
processing procedures. For example, an agency could petition to conduct 
hearings on its own initiative before issuing a final agency decision 
or it could petition to adopt procedures for complainants to request 
the agency conduct a hearing before issuing a final agency decision.
    (1) The agency's petition shall be directed to and decided by the 
Director, Office of Federal Sector. In addition to considering any 
requirements set by the Commission's Management Directives, the 
Director may approve an internal hearing process upon satisfactory 
demonstration from the agency that the process will be impartial and 
will improve the quality and accuracy of final agency decisions.
    (2) The Commission intends that approved internal hearing processes 
will be reserved for agencies with a reliable pre-existing hearing 
infrastructure and a compelling need for resolution through a hearing 
at an earlier stage than can be provided through the Commission's 
appellate process. A compelling need can be demonstrated by national 
security interests or obligation of comparable significance.
    (3) The Director, Office of Federal Sector, will annually review 
all approved agency internal hearing processes. The Director may revoke 
approval for a deficient agency internal hearing process upon providing 
the agency with notice and a reasonable opportunity to correct and 
demonstrate compliance.
    (4) Approval of an internal hearing process is without prejudice to 
a complainant's right to appeal a final agency decision to the 
Commission under Sec.  1614.401. On appeal from a final decision by an 
agency with an approved internal hearing process, the Commission may 
remand a matter to the agency with instructions for further proceedings 
within the agency's internal hearing process. Alternatively, the 
Commission may refer a matter to an administrative judge under the 
criteria at Sec.  1614.406(d).

0
6. Remove and reserve Sec.  1614.105.


Sec.  1614.105  [Reserved]

0
7. Amend Sec.  1614.106 to read as follows:


Sec.  1614.106  Individual complaints.

    (a) Agency with which to file. A complaint must be filed with the 
agency that allegedly discriminated against the complainant.
    (b) Time for filing. A complaint, amendment, or supplement to a 
complaint must be filed within 60 days of the date of the matter 
alleged to be discriminatory; 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.
    (c) Contents of complaint. A complaint must contain a signed 
statement from the person claiming to be aggrieved or that person's 
attorney. The signed statement must identify the complainant and the 
agency and must contain sufficient factual allegations to identify the 
action, omission, policy, practice, or matter being challenged; the 
protected bases alleged; the approximate date or time period of the 
action, omission, policy, practice, or matter being challenged; and the 
relief sought. The complaint need not use technical legal terminology, 
but it must contain sufficient factual allegations, accepted as true, 
to state a claim for relief that is plausible on its face based on 
discrimination addressed under this part. The complaint must also 
contain a telephone number, email address, mailing address, or other 
contact information where the complainant and the complainant's 
attorney or representative can be contacted.
    (d) Amending or supplementing the complaint.
    (1) A complainant may amend a complaint within 21 days after the 
complaint was filed to include issues or claims existing at the time 
the complaint was filed that are like or related to those raised in the 
original complaint. An amendment that is like or related to the 
original complaint relates back to the date the original complaint was 
filed for purposes of the time limits in paragraph (b) of this section. 
The agency shall decline to accept an amendment if it is untimely, is 
not like or related to the issues or claims in the original complaint, 
or is otherwise subject to dismissal under Sec.  1614.107.
    (3) The agency shall acknowledge the amendment request in writing, 
identify the date on which the amendment was filed, explain whether the 
amendment was accepted or declined, and include the amendment request 
and determination in the complaint record. An agency's determination to 
decline an amendment is not immediately reviewable by the Commission 
but may be considered by the Commission on an appeal from the final 
agency decision on the original complaint.
    (4) A complainant may supplement a complaint at any time before the 
agency issues a final agency decision to include issues or claims 
arising after the complaint was filed that are like or related to those 
raised in the original complaint. A supplementation does not relate 
back to the date the original complaint was filed for purposes of the 
time limits in paragraph (b) of this section. The agency may decline to 
accept an otherwise valid supplementation if the proceedings are 
advanced and accepting the supplementation would unduly delay the final 
agency decision on the original complaint. The agency shall decline to 
accept a supplementation if it is untimely, is not like or related to 
the issues or claims in the original complaint, or is otherwise subject 
to dismissal under Sec.  1614.107.
    (5) The agency shall acknowledge the supplementation request in 
writing, identify the date on which the supplementation was filed, 
explain whether the supplementation was

[[Page 55713]]

accepted or declined, and include the supplementation request and 
determination in the complaint record. An agency's determination to 
decline a supplementation request is not immediately reviewable by the 
Commission but may be considered by the Commission on an appeal from 
the final agency decision on the original complaint.
    (6) If an agency declines to accept an amendment or 
supplementation, and the claims raised therein are timely and not 
otherwise subject to dismissal under Sec.  1614.107, the agency shall 
accept and process the claims as a separate complaint.
    (e) Acknowledgment of complaint and notice of rights. The agency 
shall acknowledge receipt of a complaint in writing and inform the 
complainant of the date on which the complaint was filed. If the agency 
accepts the complaint, the acknowledgment shall advise the complainant 
that:
    (1) The agency will conduct an impartial and appropriate 
investigation of the accepted complaint, including any accepted 
amendment or supplementation, and issue a final agency decision in 
accordance with Sec. Sec.  1614.108 and 1614.110;
    (2) When a complaint has been supplemented, the agency shall 
complete the investigation within the earlier of 135 days after the 
last accepted supplementation to the complaint or 270 days after the 
filing of the original complaint, unless the time period is extended in 
accordance with Sec.  1614.108;
    (3) The complainant has the right to appeal a final agency decision 
to the Commission in accordance with subpart D of this part;
    (4) In an appeal, the Commission may decide the matter on the 
administrative record, order supplementation of the record, remand the 
matter to the agency, or refer the matter, or specified claims or 
issues, to an administrative judge under Sec.  1614.406 when the 
Commission determines that administrative judge proceedings are 
necessary or efficient; and
    (6) The complainant has the right to file a civil action in 
accordance with Sec. Sec.  1614.407 and 1614.408, as applicable.

0
8. Amend Sec.  1614.107 by revising paragraph (a) introductory text, 
paragraphs (a)(1), (a)(2), and (a)(5), and paragraph (b) to read as 
follows:


Sec.  1614.107  Dismissals of complaints.

    (a) Dismissal of entire complaint. The agency shall issue a final 
agency decision dismissing an entire complaint:
    (1) That fails to state a claim under Sec.  1614.103 or fails to 
satisfy the pleading requirements of Sec.  1614.106(c), or states the 
same claim that is pending before or has been decided by the agency or 
the Commission;
    (2) That fails to comply with the applicable time limits contained 
in Sec.  1614.106;
* * * * *
    (5) That is moot or alleges that a proposal to take a personnel 
action, or another preliminary step to taking a personnel action, is 
discriminatory, unless the complaint states a claim for retaliation 
based on the proposal or preliminary step that is plausible on its 
face;
* * * * *
    (b) Partial dismissal of claims. Where the agency concludes that 
some but not all of the claims in a complaint should be dismissed for 
the reasons contained in paragraphs (a)(1) through (9) of this section, 
the agency shall notify the complainant in writing of its 
determination, identify the accepted and dismissed claims, explain the 
rationale for the determination, and include a copy of the notice in 
the complaint record. The agency shall continue processing any 
remaining accepted claims in accordance with this part. A determination 
under this paragraph is not immediately reviewable by the Commission 
but may be considered by the Commission on an appeal from the final 
agency decision on the remainder of the complaint.
0
9. Revise Sec.  1614.108 to read as follows:


Sec.  1614.108  Investigation of complaints.

    (a) Agency is responsible for investigation. The agency against 
which the complaint has been filed shall be responsible for 
investigating the complaint.
    (b) Development of factual record. In accordance with any 
additional instructions contained in the Commission's Management 
Directives, the agency shall ensure development of an impartial and 
appropriate factual record upon which to issue a final agency decision 
under Sec.  1614.110 and upon which the Commission may conduct review 
under subpart D of this part. An appropriate factual record is one that 
allows a reasonable fact finder to draw conclusions as to whether 
discrimination occurred. Agencies may use an exchange of letters or 
memoranda, interrogatories, investigations, affidavits, declarations, 
requests for information, fact-finding conferences, or any other fact-
finding methods that efficiently and thoroughly address the matters at 
issue. Agencies are encouraged to incorporate alternative dispute 
resolution techniques into their investigative efforts to promote early 
resolution of complaints.
    (c) Investigative procedures. The procedures in paragraphs (c)(1) 
through (3) of this section apply to the investigation of complaints:
    (1) The complainant, the agency, and any employee of a Federal 
agency shall produce such documentary and testimonial evidence as the 
investigator deems necessary.
    (2) Investigators are authorized to administer oaths. Statements of 
witnesses shall be made under oath or affirmation or, alternatively, by 
written statement under penalty of perjury.
    (3) When a party or current Federal employee fails without good 
cause to respond fully and timely to an investigator's request for 
evidence, the investigator may document the failure in the 
investigative record. The agency in a final decision or the Commission 
on appeal may consider the failure in evaluating the complaint and may 
draw appropriate nonmonetary evidentiary inferences, exclude evidence 
not timely produced, or take other nonmonetary procedural or 
evidentiary measures consistent with this part and applicable law. 
Neither an agency nor the Commission can compel a response from a non-
party, former employee who has left Federal service; such failure to 
respond should not raise an inference of discrimination.
    (d) Classified information. Any investigation involving classified 
information or other information requiring special handling shall be 
conducted by investigators with appropriate credentials, 
authorizations, or security clearances. The Commission will, upon 
request, supply the agency with the name of an investigator with 
appropriate credentials, authorizations, or security clearances, as 
applicable.
    (e) Time for investigation.
    (1) Except as provided in this paragraph, the agency shall complete 
its investigation within 135 days of the date of filing of an 
individual complaint or within the time period contained in an order 
from the Office of Federal Sector on an appeal from a dismissal 
pursuant to Sec.  1614.107. For complaints filed after the effective 
date of this subpart, but before January 1, 2028, the agency shall 
complete its investigation within 180 days of the date of filing of an 
individual complaint. By written agreement within those time periods, 
the complainant and the respondent agency may voluntarily extend the 
time period for not more than an additional

[[Page 55714]]

90 days. The agency may unilaterally extend the time period, or any 
period of extension, for not more than 30 days where it must sanitize a 
complaint file that may contain classified information or other 
protected information, provided the agency notifies the complainant of 
the extension.
    (2) When a complaint has been supplemented under Sec.  
1614.106(d)(4), the agency shall complete its investigation within the 
earlier of 135 days after the last accepted supplementation to the 
complaint or 270 days after the filing of the original complaint, 
unless the time period is extended in accordance with this paragraph.
    (3) The investigation is deemed complete when the investigative 
file is transmitted to the complainant and counsel for the respondent 
agency.
    (f) Supplementing the investigative file before final agency 
decision. The parties may submit additional evidence to the 
investigator within 15 days of receipt of the investigative file. The 
investigator shall append all timely submitted evidence to the 
investigative file. The record is closed after the time for submitting 
additional evidence elapses.
    (g) Time for final agency decision. The agency shall issue a final 
agency decision within 30 days of the record closing.
    (h) Delays in completing investigation or issuing final agency 
decision. If the agency is unable to complete the investigation or 
issue a final agency decision within the applicable time limits, the 
agency shall, within those same time limits, issue a written notice to 
the complainant explaining why it cannot meet the deadline, estimating 
the date by which the agency expects to complete the investigation or 
issue a final agency decision, and informing the complainant of the 
right to file a civil action in accordance with Sec.  1614.407(a)(2). 
The agency shall simultaneously inform the Office of Federal Sector of 
the delay. Commission Management Directive may proscribe the manner and 
means of the agency's notice to the Office of Federal Sector. 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.
0
10. Rename and revise Sec.  1614.109 to read as follows:


Sec.  1614.109  Offers of resolution.

    (a) Timing. After a written complaint has been filed, the agency 
may serve a written offer of resolution on the complainant at any stage 
of administrative processing.
    (b) Contents of a valid offer. To be effective under this 
paragraph, an offer must:
    (1) Be in writing;
    (2) Identify the complaint, claims, and parties to be resolved;
    (3) State the monetary relief offered, including back pay, 
compensatory damages, interest, and other monetary relief, as 
applicable;
    (4) State the nonmonetary relief offered with sufficient 
specificity to be enforceable;
    (5) Provide for payment of reasonable attorney fees and costs 
incurred through the end of the acceptance period, either in a stated 
amount or in an amount to be determined under Sec.  1614.501(e) if the 
parties cannot agree;
    (6) State that the offer will remain open for 30 days unless a 
longer period is specified; and
    (7) Clearly explain the consequences of rejection under this 
paragraph.
    (c) Acceptance. If the complainant accepts the offer in writing 
within the acceptance period, the complaint is resolved to the extent 
stated in the offer. An accepted offer is enforceable under Sec.  
1614.504. Acceptance of an offer does not constitute an admission of 
liability unless the offer expressly so provides.
    (d) Consequence of rejection. If the complainant does not accept a 
valid offer and the relief finally obtained by the complainant is not 
more favorable than the offer, the complainant may not recover attorney 
fees or costs incurred after the expiration of the acceptance period, 
except as provided in paragraph (j)(7) of this section.
    (e) Comparison of offer and relief obtained. In determining whether 
the relief finally obtained is more favorable than the offer:
    (1) The comparison must be made on an objective basis, considering 
the total monetary and nonmonetary relief offered and the total 
monetary and nonmonetary relief finally obtained;
    (2) Attorney fees and costs incurred after the expiration of the 
acceptance period must not be considered part of the relief finally 
obtained;
    (3) Attorney fees and costs incurred through the expiration of the 
acceptance period must be considered only to the extent the offer 
included such fees and costs in a stated amount or offered to pay 
reasonable fees and costs as determined under Sec.  1614.501(e);
    (4) Nonmonetary relief must be compared according to its practical 
effect, enforceability, duration, and relationship to the claims at 
issue; and
    (5) The agency bears the burden of establishing that the offer was 
valid and that the relief finally obtained was not more favorable than 
the offer.
    (f) Multiple offers. The agency may make more than one offer. If 
more than one valid offer is rejected, the limitation on fees and costs 
applies from the expiration of the acceptance period for the earliest 
offer that was not less favorable than the relief finally obtained.
    (g) Limitations. The limitation in paragraph (j)(4) of this section 
does not apply if the offer was invalid, unenforceable, or materially 
incomplete, or to the extent application of the limitation is 
prohibited by the governing fee statute. A claim, event, or request for 
relief arising after the offer is considered only if it is within the 
scope of the offer.
    (h) Evidentiary effect. An unaccepted offer is not admissible to 
prove liability or the amount of relief, but may be considered in 
determining attorney fees and costs under this paragraph.
0
11. Rename and revise Sec.  1614.110 to read as follows:


Sec.  1614.110  Final agency decisions.

    (a) Final agency decision dismissing entire complaint. The agency 
shall issue an immediate final agency decision where the entire 
complaint is subject to dismissal under Sec.  1614.107. The final 
agency decision shall include:
    (1) A description of the claims;
    (2) The rationale for dismissal;
    (3) Notice of the complainant's right to appeal to the Commission, 
including that the appeal may be filed using the EEOC Public Portal, 
available at <a href="https://publicportal.eeoc.gov">https://publicportal.eeoc.gov</a>;
    (4) Notice that, in an appeal, the Commission may decide the matter 
on the record, order supplementation, remand the matter, or refer the 
matter to an administrative judge under Sec.  1614.406;
    (5) Notice of the right to file a civil action in federal district 
court, the name of the proper defendant, and the applicable time 
limits; and
    (6) A copy of EEOC Form 573 or other Commission-prescribed appeal 
notice.
    (b) Final agency decision on the merits. The agency shall issue a 
final agency decision on the merits of an accepted complaint, or 
partially accepted complaint, after completing the investigation 
required by Sec.  1614.108. The agency shall issue the final agency 
decision within the time limits prescribed by Sec.  1614.108(g), unless 
the complaint is resolved, withdrawn, dismissed, or otherwise 
terminated. The final agency decision shall consist of findings, 
decided on a preponderance of the evidence standard, by the agency on 
the merits of each accepted claim in the complaint. When discrimination 
is

[[Page 55715]]

found, the final agency decision shall provide appropriate remedies and 
relief in accordance with subpart E of this part. The final agency 
decision shall include:
    (1) A description of the claims, including any claims partially 
dismissed under Sec.  1614.107;
    (2) The rationale for any finding of discrimination or no 
discrimination;
    (3) Any remedies and relief ordered;
    (4) Notice of the complainant's right to appeal to the Commission, 
including that the appeal may be filed using the EEOC Public Portal, 
available at <a href="https://publicportal.eeoc.gov">https://publicportal.eeoc.gov</a>;
    (5) Notice that, in an appeal, the Commission may decide the matter 
on the record, order supplementation, remand the matter, or refer the 
matter to an administrative judge under Sec.  1614.406;
    (6) Notice of the right to file a civil action in federal district 
court, the name of the proper defendant, and the applicable time 
limits; and
    (7) A copy of EEOC Form 573 or other Commission-prescribed appeal 
notice.
    (c) Agency request for administrative judge proceedings. If the 
agency believes that administrative judge proceedings would be 
necessary or efficient if the complainant appeals, the agency may 
include in the final agency decision, or in an attachment to the final 
agency decision, a request for referral under Sec.  1614.406. The 
request must identify the issues for referral and explain why referral 
would be necessary or efficient. The request does not affect the 
finality of the final agency decision, the complainant's appeal period, 
or the complainant's civil action rights.
    (e) Final agency action. A final agency decision issued under this 
section is final agency action for purposes of subparts D and E of this 
part, subject to review by the Commission if timely appealed, and 
subject to termination of administrative processing if a civil action 
is filed.
0
12. Amend Sec.  1614.203 by revising paragraph (d)(3)(iii)(D) to read 
as follows:


Sec.  1614.203  Rehabilitation Act.

* * * * *
    (d) * * *
    (3) * * *
    (iii) * * *
    (D) Explains that the individual may file a complaint under Sec.  
1614.106 and identifies the applicable filing deadline and procedural 
requirements under this part.
* * * * *

Subpart B--Provisions Applicable to Particular Complaints

0
13. Revise Sec.  1614.204 to read as follows:


Sec.  1614.204  No class complaints; assertion of putative class claims 
for administrative exhaustion; joint processing of related individual 
complaints.

    (a) No administrative adjudication of class complaints.
    (1) Complaints under this part may be filed, accepted, 
investigated, heard, decided, resolved, appealed, and enforced only as 
individual complaints of identified aggrieved persons, except that 
related complaints or claims may be processed together as provided in 
this section or Sec.  1614.606.
    (2) Subject only to paragraph (b) of this section, which permits 
assertion of a putative class claim for administrative exhaustion 
purposes only, no complaint may be filed, maintained, certified, 
processed, adjudicated, resolved, appealed, or enforced as a class 
complaint under this part. No employee, former employee, applicant for 
employment, representative, or other person may act as a class agent or 
class representative under this part.
    (3) An agency, an administrative judge, or the Commission shall 
not, under this part, 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 or final order binding 
persons who are not identified complainants, or award individual relief 
to persons who are not identified complainants. This does not limit any 
individual's or agency's right or ability to pursue or settle class-
wide claims outside the administrative process established under this 
part.
    (4) An allegation that an agency personnel policy, practice, 
action, or matter affected more than one employee, former employee, or 
applicant for employment may be raised by one or more identified 
complainants and, where appropriate, may be processed together with 
related individual complaints or claims under this section or Sec.  
1614.606.
    (b) Assertion of putative class claims for administrative 
exhaustion purposes.
    (1) A complainant may assert, in a written complaint, amendment, or 
supplementation under Sec.  1614.106, that an agency policy, practice, 
action, or matter discriminated against a putative class of employees, 
former employees, or applicants for employment. Such an assertion may 
be made for the purpose of presenting the putative class claim to the 
agency or the Commission and preserving the complainant's ability to 
contend in a subsequent civil action that administrative exhaustion 
requirements have been satisfied.
    (2) A putative class claim asserted under this paragraph is not a 
class complaint under this part and shall not be processed as a class 
complaint under this part. A complainant who asserts a putative class 
claim under this paragraph is not a class agent, class representative, 
or representative of any person other than the complainant in 
proceedings under this part.
    (3) A complainant asserting a putative class claim for 
administrative exhaustion purposes under this paragraph should 
identify, to the extent reasonably available:
    (i) The agency policy, practice, action, or matter alleged to have 
affected the putative class;
    (ii) The protected bases;
    (iii) The complainant's own individual claim, injury, and requested 
relief;
    (iv) The general description of the putative class; and
    (v) The time period during which the alleged discrimination 
occurred.
    (4) The agency shall include a putative class claim asserted under 
this paragraph in the complaint record and shall notify the complainant 
that the claim will not be certified, heard, decided, resolved, 
appealed, or enforced as a class complaint in the administrative 
process. The agency shall not investigate the claim as a class 
complaint, but may investigate the alleged policy, practice, action, or 
matter to the extent relevant to the complainant's individual claim or 
any jointly processed individual claims. The agency shall process the 
complainant's individual complaint, and any jointly processed 
individual complaints, in accordance with this part.
    (5) An agency shall not dismiss an otherwise valid individual 
complaint solely because the complainant has asserted a putative class 
claim under this paragraph. The agency may dismiss or reject the 
putative class-processing component of the complaint on the ground that 
class complaints are not processed under this part, but such action 
shall not affect the processing of any individual complaint or claim 
that otherwise complies with this part.
    (6) For purposes of the administrative procedures established by 
this part, a putative class claim asserted under this paragraph is 
deemed presented to the agency or the Commission on the date it is 
timely raised. The final agency or Commission action on the 
complainant's individual complaint, or the agency's or Commission's 
failure to

[[Page 55716]]

take final action within the applicable time period, constitutes final 
administrative action, or failure to take final administrative action, 
on the complaint including the putative class claim to the extent such 
action or inaction is required by this part or by statute before filing 
a civil action.
    (7) Nothing in this paragraph authorizes class certification, class 
notice, class discovery, class settlement, class-wide adjudication, 
class-wide relief, tolling for persons who are not identified 
complainants, or any binding determination of the rights of absent 
persons in the administrative process.
    (c) Complaints by identified groups of complainants.
    (1) Two or more identified employees, former employees, or 
applicants for employment may file a single joint written complaint, or 
may file separate complaints, concerning substantially similar 
allegations of discrimination or relating to the same agency policy, 
practice, action, or matter.
    (2) Each identified complainant must satisfy the applicable 
requirements of Sec.  1614.106, including applicable time limits and 
pleading and signature requirements.
    (d) Requests for joint processing.
    (1) One or more identified employees, former employees, or 
applicants for employment may request that the agency or the Commission 
process related individual complaints or claims together.
    (2) A request for joint processing should identify the complaints, 
claims, and complainants proposed for joint processing; describe the 
common questions of fact or law, common policy or practice, or other 
relationship among the claims; and explain why joint processing would 
promote fair, efficient, and timely resolution.
    (3) The agency or the Commission shall consider a request for joint 
processing and notify the affected complainants and the agency whether 
the request is granted, denied, or granted in part. Denial of a request 
for joint processing does not dismiss any complaint or claim and does 
not affect any complainant's right to proceed individually.
    (e) Discretionary joint processing by the agency or Commission.
    (1) The agency or the Commission may, on its own initiative or on 
request of one or more complainants, process related individual 
complaints or claims together when they involve substantially similar 
allegations, common questions of law or fact, the same or related 
agency policies or practices, the same matter, or other circumstances 
showing that joint processing would promote fair, efficient, and timely 
resolution.
    (2) Joint processing may include, as appropriate: coordinated or 
joint alternative dispute resolution; investigation; development of a 
common factual record; discovery or other development of evidence; 
hearing; agency final action; appeal; compliance proceedings; or other 
case-management procedures consistent with this part.
    (3) Before directing joint processing, the agency or Commission 
shall provide appropriate notice to the affected complainants and the 
agency.
    (f) Severance, limitations, and case management. The agency or 
Commission may decline, limit, discontinue, or modify joint processing, 
or may sever complaints, claims, issues, or parties, when joint 
processing would unduly delay resolution, prejudice a complainant or 
the agency, create a conflict of interest, compromise privacy or 
confidentiality interests, involve materially different facts or legal 
issues, affect classified or otherwise protected information, or 
otherwise fail to promote fair, efficient, and timely processing.
    (g) Individual rights preserved.
    (1) Joint processing under this section or Sec.  1614.606, or the 
assertion of a putative class claim under paragraph (b) of this 
section, does not create a class, class complaint, class agent, class 
representative, class member, or class-wide presumption of 
discrimination.
    (2) Joint processing does not alter any complainant's obligation to 
satisfy the requirements of this part; does not alter any election-of-
remedies rule; and does not expand or restrict any complainant's rights 
under this part.
    (3) Each complainant remains responsible for proceeding with that 
complainant's own complaint, whether or not the complaint is jointly 
processed with other complaints and whether or not the complainant has 
asserted a putative class claim under paragraph (b) of this section.
    (h) Decisions, settlements, and relief.
    (1) In any jointly processed matter, the agency or Commission shall 
make findings and determinations as to each identified complainant and 
each claim, except to the extent a complainant's claim is otherwise 
resolved, withdrawn, dismissed, severed, or terminated.
    (2) In any matter in which a complainant has asserted a putative 
class claim under paragraph (b) of this section, the agency or 
Commission shall make findings and determinations only as to the 
identified complainant or complainants and the claims processed under 
this part. The agency or Commission shall not make class-wide findings 
or determinations and shall not determine the rights of persons who are 
not identified complainants.
    (3) Any settlement agreement must be in writing, must identify the 
complainants and claims resolved, and binds only the parties to the 
agreement. A settlement of one complainant's claim does not resolve 
another complainant's claim unless that complainant knowingly and 
voluntarily agrees in writing.
    (4) Relief may be awarded only as authorized by this part. 
Individual relief may be awarded only to identified complainants who 
are parties to the complaint or proceeding. Nothing in this section 
limits the authority of an agency or the Commission to order 
corrective, curative, preventive, or prospective relief otherwise 
authorized by this part in an individual complaint.
    (i) Relationship to Sec.  1614.606. Complaints or claims processed 
together under this section remain individual complaints or claims for 
purposes of this part. This section supplements Sec.  1614.606 and 
shall be construed to preserve the authority of agencies and the 
Commission to consolidate or jointly process related complaints by 
identified complainants, without permitting class complaints or class-
wide adjudication in the administrative process.

Subpart C--Related Processes

0
14. Revise Sec.  1614.301 to read as follows:


Sec.  1614.301  Negotiated grievance procedures.

    (a) Applicability. This 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 the coverage of a negotiated grievance procedure, 
and the negotiated grievance procedure permits allegations of 
discrimination to be raised.
    (b) Election. An employee covered by paragraph (a) of this section 
may raise a matter under either this part or the negotiated grievance 
procedure, but not

[…truncated; see source link]