U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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COMMISSION MEETING

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OPEN SESSION

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WEDNESDAY, AUGUST 26, 2026

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PRESENT:

ANDREA R. LUCAS        Chair

KALPANA KOTAGAL        Commissioner

BRITTANY PANUCCIO      Commissioner

ALSO PRESENT:

     HEATHER OLOWSKI, Legal Counsel

            This transcript was produced from audio provided by the Equal Employment Opportunity Commission.

TABLE OF CONTENTS

Call to Order                                 3

Sunshine Act Presentation                     3

Notice of Proposed Rulemaking Presentation     4

Opening Statement by Chair Lucas                  8

Opening Statement by Commissioner Kotagal       13

Opening Statement by Commissioner Panuccio      18

1st Discussion Round by Commissioner Kotagal  26

1st Discussion Round by Commissioner Panuccio 31

2nd Discussion Round by Commissioner Kotagal  36

2nd Discussion Round by Commissioner Panuccio 41

2nd Discussion Round by Chair Lucas           45

NPRM Approval                                 49

Adjourn                                       50

P-R-O-C-E-E-D-I-N-G-S

         CHAIR LUCAS:  Good morning.  Welcome to this meeting of the commission.  I'm pleased to be joined here today by my colleagues, Commissioner Kotagal and Commissioner Panuccio, virtually.  I also want to welcome the agency's staff and members of the public that are joining us, whether in person or on the audio line.  We'll begin the meeting by having a presentation by our legal counsel, Heather Olowski, who will provide a presentation on the Sunshine Act, followed by a brief presentation on the proposed Notice of Proposed Rulemaking.  Thank you.

1. OLOWSKI: Thank you.  Good morning.  This meeting of the Equal Employment Opportunity Commission was noticed pursuant to the requirements of the Sunshine Act, both on the agency's website and in the Federal Register.  It is open to the public and, as such, the Commissioners are free to deliberate consistent with the order of this proceeding.  The public is invited to listen to the deliberations of the Commission in person or via listen-only audio.  Remarks and questions will not be taken from the audience.

         A written transcript of the hearing will be made available on eeoc.gov/meetings.  Observers seeking to take still photographs, video or audio recordings of the meeting must have obtained permission at least 24 hours in advance by contacting the Executive Secretariat to discuss the manner of recording and ensure it does not interfere with the proceedings.

         Please turn off or otherwise silence your phones or other electronic devices so that you do not interrupt today's proceedings.  If you need to make a call, please exit the hearing room.

         The Notice of Proposed Rulemaking or NPRM under consideration for today proposes significant revisions to the federal sector EEO complaint process.  I will provide a brief overview of the current federal sector complaint process and some of the revisions proposed in the NPRM.

         Title VII of the Civil Rights Act of 1964 as amended and related statutes prohibiting discrimination in employment give the EEOC responsibility to administer the process for employment discrimination complaints against most agencies and the federal government.  The process as it stands today features five distinct components.  Number one, mandatory pre-complaint counseling.  Number two, investigation by the responsible agency.  Three, adjudication.  Four, appeal to the EEOC.  And five, compliance.

         The NPRM among other things proposes significant reforms to the pre-complaint adjudication and appeal stages.  At the pre-complaint stage, the current rule requires aggrieved individuals to initiate EEO counseling within 45 days of the allegedly discriminatory event.  Counseling can last up to 90 days.

         The NPRM proposes replacing pre-complaint counseling with a direct filing model.  In the proposed rule, an aggrieved individual would have 60 days from the allegedly discriminatory event to file a complaint with the responsible agency.  Once the complaint is filed, the agency would have -- would investigate the complaint.

         Throughout the investigatory stage, as during all other stages in the EEO process, the agency would be able to pursue alternative dispute resolution with the complainant.  Significant updates are proposed to the adjudication stage as well.  Under the current rule, complainants may request either an immediate final agency decision or they may request a hearing before an EEOC administrative judge.

         For illustrative context, in fiscal year 2023, there were 5,172 final agency decisions and 6,641 hearing requests.  Currently, EEOC administrative judges resolve most hearing requests through dismissal, withdrawal, settlement, and decisions without a hearing.  In fiscal year 2025, EEOC administrative judges conducted 303 hearings compared to 6,178 total resolutions, a rate of 4.9 percent.

         The NPRM replaces the hearing election model with a hearing referral model.  In the proposed rule, after the responsible agency investigates the complaint, it is required to issue a prompt final agency decision.  A complainant may appeal the agency's decision to the EEOC, and through their appeal, they may request the matter be referred to an administrative judge for further hearing proceedings.

         In reviewing appeals, EEOC's Office of Federal Sector, formerly titled the Office of Federal Operations, will consider whether referring the matter for a hearing is necessary or efficient, including whether genuine disputes of material fact or credibility can be fairly resolved on the record.  Office of Federal Sector may tailor the scope of the hearing referral, and the administrative judge will be given a deadline to issue their recommended decision.

         The NPRM offers the proposed revisions to address observed shortcomings in the timeliness and effectiveness of the current complaint process.  For similar reasons, the NPRM proposes the EEOC no longer adjudicate class complaints.  Under the proposed rule, individual complainants could still administratively exhaust their claims through the EEOC before filing a class action in district court, and individual complainants could still have their complaints jointly processed together, where doing so is effective.

         The proposed changes will have no effect on currently filed class complaints and will be prospective only.  This overview is for introductory purposes only and does not address every proposed revision in the NPRM.  I hope this overview has been helpful for context for the NPRM to be considered by the Commission today.  Thank you.

         CHAIR LUCAS:  Thank you very much.  We'll be now moving to opening statements and after that, we'll introduce the motion to address the item on the agenda, the Notice of Proposed Rulemaking, at which point we'll also have two rounds of discussion, and then we'll call the question and vote.  So I'll begin with my opening statement.

         The Commission meets today to address and consider long overdue reform to the internal federal government process for federal employees and applicants EEO complaints.  The EEOC's authority and obligation to oversee this process for federal employees is a vital aspect of EEOC's overall promise to ensure equal opportunity to all Americans.  Regrettably, I'm not convinced that the EEOC has consistently fulfilled that promise to federal employees or federal agencies.

         I'll highlight today some of the concerns contextualized reforms contemplated in this proposed rulemaking and to share why they are so urgently needed.  To start, we must keep in mind what the federal sector process is supposed to be.  In the words, the direct words of the Supreme Court, the process is, quote, encourage quicker, less formal, and less expensive resolution of disputes within the federal government and outside of court, end quote.  And it should go without saying the process should also consistently reach the correct result under the law.

         Does the current process created by the EEOC's regulation deliver these results?  The evidence says no.  On timeliness, the current process is unjustifiably prolonged.  When complainants request hearings before an administrative judge, the complaints often take years to resolve.  If we zero in just on cases with successful complainants where discrimination is actually found, victims of discrimination, the timeliness issues become especially acute.

         From fiscal year 2021 through 2025, victims of discrimination and people where we found cause and found discrimination occurred had to wait on average 962 days or 2.63 years from the time that their hearing requests were docked with the EEOC by the time they received decisions from administrative judges granting them relief.

         And I stress that that is just the time spent before the administrative judge and does not include the previous time spent by the employee during the counseling and agency investigation stages before the employee even gets to the point of requesting a hearing.  I also stress that this is just the average.  Many victims of discrimination end up waiting even longer before receiving decisions from our administrative judges granting them relief.  One in four successful complainants waited more than 1,190 days or 3.26 years before receiving a decision.  And one in ten waited more than 1,661 days or 4.5 years long.

         Why does it take so long?  Why is the wait even longer for those with the most meritorious claims?  The heightened formality of the administrative judge proceedings is a likely contributor to the lengthy processing times.  Over the decades, our federal sector processes gained layers of procedural formality to the point that it almost looks like traditional federal court litigation.  Extensive discovery and summary judgment motions create undue complexity and adversity for both complainants and agencies.  As things stand today, EEOC administrative judges invest most of their time and energy on motion practices for cases, sometimes often cases without merit.

         The proliferation of so many clearly meritorious complaints indicates the process has become susceptible to abuse.  Employees can use lengthy and complex administrative judge proceedings to evade performance accountability and stymie routine performance personnel actions that have no plausible link to unlawful discrimination.

         Moving to a targeted referral model for the administrative judge proceedings as the NPRM proposes, it's a potential solution to protect the integrity of the process and focus administrative judge resources on the cases that warrant them the most.  In addition, we have concerns with the procedural complexity and formality accompanying the EEOC's current class complaint procedures.

         On the one hand, consolidated class proceedings can bring meaningful justice to victims of widespread discrimination.  And to that end, EEOC and private sector frequently brings large group or class-like cases in federal court.  But on the other hand, I have not seen evidence that in the federal sector this tool is being administrated effectively.

         As a commissioner and now as chair, I have witnessed multiple egregious instances when EEOC decision makers have misapplied even basic class procedures or have misapplied substantive law against an entire class.  These mistakes can result in meritless class complaints being unnecessarily prolonged for years and even decades.  We've had cases that have been 20 years old.  With this experience in mind, I believe reserving class adjudication for federal courts as the NPRM proposes is an idea worth considering.

         My goal in this rulemaking process is to provide complainants, agencies, and the EEOC itself with the best tools to accomplish its mission.  I firmly believe the public shares that goal and I look forward to considering their comments should the Commission decide today to advance this NPRM.  I'll now recognize Commissioner Kotagal for her opening statement.

         COMMISSIONER KOTAGAL:  Thank you.  Good morning.  We're gathered today to consider a proposal to weaken equal opportunity and access to justice for federal employees.  Before I outline proposed changes, I want to take a moment to describe the current federal sector process and I want to thank agency EEO staff for their work that you all do.

         Unlike the private sector where workers file charges of discrimination with the EEOC, in the federal sector, workers file complaints directly with their agency.  Federal employees have just 45 days after the discrimination occurred to contact an EEO counselor.  Once a complaint is filed, the agency investigates itself.  After 180 days, the employee has the right to request an impartial hearing before an EEOC administrative judge or AJ.

         Alternatively, once the investigation is completed, the federal employee can request a final agency decision or FAD from their agency that will address the merits of their claims.  It's a complicated process, and for decades, it's been criticized for inefficiencies, for untimeliness and conflicts of interest.  I'm not here to defend the status quo.  There is certainly room for improvement.

         Unfortunately, I believe the proposed changes will only exacerbate problems.  The EEOC's proposal will make it harder for federal employees to challenge discrimination and easier for agencies to evade responsibility.  The changes speak for themselves.

         First, the Commission seeks to eliminate pre-complaint counseling which provides federal employees with critical information about their rights and the EEO process.  Next, even as the Commission laments that the EEO process was never meant to replace or mirror the civil action, it adopts federal court standards to enable agencies to dismiss complaints.

         Under this proposal to initiate the process before any investigation has taken place, federal employees would need to file complaints that survive the plausibility standard required in federal civil litigation.  This is notable for several reasons, including that even as the Commission ratchets up the pleading standard, it maintains a short filing period that can only be described as arbitrary and punitive.

         Although most private sector workers have 300 days to file a charge and legislative branch employees have 180 days, federal employees will have just 60 days to file a complaint.  Many workers won't know about these stringent timeframes or have processed what's happening to them before they're expected to file.  This is a problem now and it won't be addressed by the proposal the Commission sets forth today.

         Shockingly, the proposal also eliminates a federal employee's right to an impartial hearing before the EEOC.  Under the current framework, this is the first opportunity a federal employee has to receive external review of their complaint, short of going to court.  Under the proposed changes, federal agencies must issue a FAD that employees can then appeal to the EEOC, which will then decide if a hearing is warranted.

         A federal employee will have no right to discovery, even though the agency they're up against has greater access to information.  Even as the proposal requires FADs and weakens them, FADs will no longer need to include findings by the agency on the merits of each issue.  The NPRM also states that it implements the Cummings Act, yet the proposal fails to include important provisions, including the requirement that the EEO program not be under the control of the agency's HR or general counsel, or provisions related to referrals to the Office of Special Counsel for potential disciplinary action.

         Finally, and perhaps most cynically, the proposal eliminates the administrative process for class complaints, for federal employees to challenge systemic discrimination, and I'll speak to that more shortly.  It may be confusing why a Commission charged with protecting federal employees is rushing to weaken their rights.  Context matters.  This administration has been determined to penalize federal workers.  Don't take my word for it.

         Russ Vought, the head of OMB, said of federal employees, quote, we want to put them in trauma, end quote.  Since then, the administration has shrunk the size of the federal government through rifts and buyouts.  It has issued rules to weaken labor agreements and civil service protections.  Now it is coming for federal employees' civil rights.  These actions deny a fundamental truth, the federal government is only as strong as its dedicated civil servants, its ability to regulate the health and safety of our food, to protect against child labor and wage theft, to defend our national security.

         All of these hinge on the strength of our federal workforce.  The federal government should be a model employer that includes holding itself accountable.  Unfortunately, this proposal retreats from those foundational principles.  To the federal employees listening today, I believe you deserve better.  Thank you.  I yield back the balance of my time.

         CHAIR LUCAS:  Thank you Commissioner Kotagal.  I now recognize Commissioner Panuccio for her opening statement.

         COMMISSIONER PANUCCIO:  Thank you Chair Lucas.  Before I begin, I want to recognize the staff who helped prepare us for today's meeting and the career employees throughout the agency who administer our federal sector work every day.  Their experience informed the work before us now, and I'm deeply grateful for what they do.

         The federal sector EEO process, as you've heard from my colleagues, is the principal administrative mechanism for federal employees to vindicate their civil rights in the workplace.  Employees who believe those rights have been violated should have a fair and meaningful opportunity to have their claims investigated and resolved.  And when discrimination has occurred, they shouldn't have to wait years for an answer.  But a process can be well intentioned and still stop working as it should.

         Over time, the federal sector process has accreted procedural complexity, unclear and outdated requirements, and ineffective allocation of adjudicative resources, all of which have contributed to matters taking a reasonably long time to resolve.  In important respects, the process is no longer serving federal employees as well as it should.

         A system intended to give employees accessible and efficient means of securing the protection of our civil rights laws should not require them to navigate years of administrative process before receiving a meaningful answer.  We see that problem throughout the system as it currently stands.  Investigations routinely exceed regulatory deadlines, final agency decisions are delayed, administrative proceedings can remain pending for years or even decades.

         And some class matters have taken extraordinary amounts of time to simply resolve threshold questions.  Those delays have real consequences for employees seeking resolution of their claims.  And where discrimination has occurred, the relief the law provides.  Years of delay can erode the value of that relief and prolong the consequences of discrimination long after the underlying events occurred.

         The goal should be a process that resolves claims thoroughly, fairly, and in a reasonable amount of time.  That means giving agencies workable procedures to investigate and decide complaints, holding the process accountable to meaningful deadline, and ensuring that the Commission's resources are focused where they are most useful.  There's substantial room to improve how this process works while preserving the protections federal employees are entitled to receive.

         So I think it's appropriate, even overdue, for the Commission to take a comprehensive look at Part 1614 and ask some basic questions.  What's working?  What isn't?  Which procedures actually help resolve claims?  And which simply add time and expense?  Are there ways we can make this process clearer, faster, and more accountable without sacrificing fairness or accuracy?  Those are the questions this rulemaking is intended to address.

         This is not an effort to reduce the Commission's federal sector mission or diminish the roles of those who execute it.  That important work remains.  The question is how to organize that work so our resources are directed where they can do the most good and so that complainants receive meaningful decisions in a reasonable amount of time.  And importantly, this is a proposed rule.

         The purpose of this stage is to present our ideas to the public and hear from the people who will be affected by them.  Some of the approaches here may benefit from refinement.  And if the proposed rule is published, I expect federal employees, agencies, practitioners, and others who work within the system every day to identify issues and alternatives that will inform our consideration of a final rule.  That's an essential part of the rulemaking process.

         We will carefully consider the comments we receive, including the alternatives they present that may better accomplish the proposed rule's objective before deciding what any final rule should contain.  But I do believe that the status quo warrants serious reconsideration.  We owe federal employees a process that's fair, understandable, and capable of delivering timely results.  And I welcome the opportunity to consider how we can build one that better fulfills that responsibility.  Thank you.

         CHAIR LUCAS:  Thank you.  We will now move to the motion.  So I move that the Commission adopt or vote to approve the issuance of the Notice of Proposed Rulemaking regarding the revision of federal sector EEO complaint regulations.  Is there a second?

         COMMISSIONER PANUCCIO:  Yes, I second the motion.

         CHAIR LUCAS:  Okay.  Now that we have a motion on the floor, we'll move to discussion.  I'll begin the first round and then recognize my fellow Commissioners, and the Executive Secretariat will control the time.  I think it's important to reiterate some of the summary points of the context in which we're dealing with here, as briefly outlined by our legal counsel in her overview of the proposed notice of rulemaking.

         For the public, it's important to remember that there are distinctions between how the private sector and the public sector process works for the adjudication of EEO complaints, and that context is helpful here.  Like for private sector EEO complaints, Title VII, the statute that is relevant here, requires the federal employees proceed with an administrative process, okay, administrative exhaustion, before they're entitled to bring their claims in federal court via private right of action.

         However, the required administrative process or the administrative exhaustion is materially different between the private sector and the public sector.  Unlike in the private sector context, the statutory requirements and protections here require that federal employees submit their EEO complaints first internally to their federal agency employer, and the statute also explicitly grants them the right to appeal their federal employer's final decision to the EEOC, and then grants them a private right of action only after that FAD or final agency decision or after an appeal to the EEOC.

         Other than these key points, Title VII outlines no other statutory mandates, no other statutory rights, no other statutory protections for the structure of the internal complaint and appeal process, and instead Congress specifically authorized the EEOC to issue procedural rules, regulations, orders, and instructions to further govern the structure of the internal complaint process.

         I reiterate that because again, we've heard that we are eroding supposedly federal employees' rights, and it is important to start with a concept of what in fact are the statutory rights provided by Title VII.  What we're talking about here is not changing anyone's statutory rights.  We're talking about an administrative process that the EEOC has created, a process that we were entitled to take some steps to do via rulemaking, and that we can also have the authority to change via rulemaking.

         But again, it's a creature of regulatory creation that is not working right now for federal employees, and therefore we have both the right and the obligation to reform that process.  I want to reiterate again, the NPRM does not alter any employees' statutory rights.  The NPRM preserves employees' rights to receive a final action from the responsible agency.  It preserves their right to appeal a final agency action to the EEOC, again as explicitly stated in Title VII, and it preserves the employees' rights to bring their claims to a district court in a civil action, including through a civil class action.

         Beyond just preserving statutory rights, the reforms proposed in the NPRM would give federal employees an efficient and effective process to realize those rights, and the current process does not give them that efficient and effective process.  Advancing the goal of trying to figure out what is in fact the best way to have a regulatory scheme to enforce those statutory rights means the EEOC has to ask itself hard questions about the scope of its resources and its expertise, and make difficult calls on how resources and expertise should be allocated.

         But advancing this proposed rulemaking does not, contrary to my colleagues' assertion, does not change the Commission's commitment to vigorous, fair, and effective enforcement of civil rights, including in the federal sector.  Most importantly, this is a Notice of Proposed Rulemaking.  If a majority of the Commission votes to proceed and issue this NPRM, the proposal will be published in the Federal Register, the public will have a full opportunity to review it and submit comments, and we welcome those comments.

         The purpose of this administrative process under the APA is to ensure the final rulemaking decisions are informed by a wide range of perspectives.  No final decision has been made, and the Commission remains open to all perspectives and will base its action on the full record developed through public comment.

         And finally, this proposed rule is not intended as a silver bullet solution.  Whatever course the EEOC takes on these issues will entail significant commitments from its leaders and its employees and staff.  I believe that this proposed rulemaking is an opportunity to reinvigorate the EEOC's work in the federal sector and will ultimately deliver real justice for federal employees and agencies.  I yield back the rest of my time and turn it over to Commissioner Kotagal for her first discussion round.

         COMMISSIONER KOTAGAL:  The three of us seem to agree on the reality that the federal sector process is already challenging.  I think where we disagree, at least at this point, is that this proposal would make it even harder for workers and more burdensome for agencies and courts.

         As both of my colleagues have noted, the issues that plague the federal sector are not new.  In 2009, GAO surveyed EEO practitioners who identified factors that hurt, prompt, and impartial complaint processing, including the lack of accountability for agencies that missed deadlines, insufficient resources for EEO offices, and potential conflicts of interest in having agencies determine if they should be liable for discrimination.  One AJ referred to it as the fox guarding the henhouse.

         Since then, there have been some improvements, but overarching concerns remain.  Investigations are too slow and often inadequate.  Agencies routinely miss deadlines for issuing final decisions.  EEO offices feel pressure for not issuing findings of discrimination, and there are insufficient consequences for all of this.  The EEOC's own reports are clear in this regard.  An analysis of FY21 data from 278 agencies found that investigations take, on average, 185 days to complete, more than the 135 days proposed in the NPRM.

         Another EEOC report found that it took agencies, on average, 178 days to issue FADs, significantly more than the 60 days currently allowed, and the 30 days proposed under this NPRM.  In the past, the EEOC has identified impediments to timely FADs, including inadequate investigations and heavy caseloads.  With no pre-complaint counseling and mandatory FADs, these challenges will balloon under this proposal.

         Although this NPRM purports to make the process speedier, the reality is that myriad other aspects of it, like insufficient consequences for non-compliance, undermine that objective systematically.  Simply shortening deadlines that agencies already fail to meet will not, without more, help workers.

         To be clear, EEO practitioners are doing their best amid severe resource shortages, which have only intensified during this administration.  These issues are complex and systemic.  They are born of a broken process, but instead of putting the pieces back together, this proposal, in my view, does further damage.  Perhaps no example is as illustrative as the NPRM's proposal to eliminate a federal employee's right to an impartial hearing before an EEOC AJ.

         Now, currently, a hearing serves as an important safeguard.  If an agency doesn't complete its investigation within 180 days, a complainant can request a hearing.  Under this proposal, that won't be an option, and an employee's only recourse before they can appeal would be costly litigation.  What incentive will an agency have to move quickly or be thorough?  Hearings also provide a complainant's first opportunity to receive external review of their complaint, which is important for employees concerned about the impartiality of their own agency determining if it discriminated.

         A hearing also provides an opportunity for discovery, leveling the playing field, and access to information.  All of these protections will be gone.  Instead, complainants, I fear, will be stuck in limbo, waiting for their agencies to issue a determination.  Only then can they appeal to the EEOC, which will decide whether to allow a hearing.  This NPRM estimates that that determination will be made in 30 minutes.

         Critically, the proposal would penalize employees for not knowing to request a hearing, stating that AJ proceedings may be waived if a complainant fails to request them or to support that request with an explanation.  As federal workers and EEO practitioners raise concerns about conflicts of interest, this NPRM would deny access to impartial hearings, allow agencies to hold their own hearings, and give agencies discretion to toss complaints for not meeting a standard reserved for federal court.

         As investigations and FADs are untimely or subpar, this NPRM would deny access to discovery and let agencies weaken FADs further.  Agencies will be given more power but no new consequences for their deficiencies.  These changes would be problematic under any administration, but they are particularly problematic under this one, given its animus toward federal employees.

         There have been media reports on EEO offices which are about to be asked to do more being shuttered or hollowed out.  And DoD recently launched EEO pilot programs, apparently driven by the Secretary's belief that discrimination claims are, quote, weaponized by, quote, some in bad faith to retaliate against superiors or peers.  This is who we want to put in charge of equal opportunity?  At the EEOC's behest, the fox will continue to guard the henhouse with even fewer protections for workers, and federal employees and American people will stand to lose.  This proposal moves us in the wrong direction.  Thank you.

         CHAIR LUCAS:  Thank you.  I now recognize Commissioner Panuccio for her first discussion round.

         COMMISSIONER PANUCCIO:  Thank you Chair Lucas.  I strongly support publishing this proposed rule for public comment.  Part 1614 has governed the federal sector EEO process for more than three decades, with significant revisions along the way.  The proposed rule before us takes a comprehensive look at that framework and makes substantial changes to some parts of the process while updating, clarifying, or reorganizing others.  Taken into account, those changes are intended to expedite the fair and meaningful resolution of federal sector discrimination claims.

         I know we've heard about some of the changes, but there are a couple of things I'd like to highlight.  The proposed rule begins its restructuring of the complaint process by re-examining mandatory pre-complaint counseling, which results, as we've heard from statistics Chair Lucas shared, in relatively few settlements and would instead allow employees to file directly with their agencies.

         That raises a straightforward question for public comment.  What, if any, functions of the existing counseling process are worth preserving?  If counseling provides value beyond settlement, commenters should identify that value and tell us whether it can be preserved through a shorter, more focused process.  That's the kind of distinction I hope the comment period will illuminate.

         From there, the proposal turns to the filing of the complaint itself.  How much time an employee has to bring a claim and what the complaint must say.  Those provisions must work in tandem.  Employees need sufficient time to recognize a potential violation, understand the process, and articulate a claim.  Agencies, in turn, need enough time to identify what they are being asked to investigate.  I expect both the filing period and the pleading requirements to draw a considerable comment, which should help us assess whether the proposed standards strike the right balance.

         The next question is what happens after the complaint arrives?  The proposal places much greater emphasis on the investigation and the final agency decision.  It establishes firmer timelines for investigation, provides an opportunity to supplement the record, and requires agencies to issue reasoned decisions on that record.

         I support that general direction, but deadlines have little force if they can simply lapse.  During the rulemaking process, I'm interested to examine mechanisms that will give those deadlines meaningful effects and hold agencies to the timelines we establish while preserving appropriate flexibility for cases that genuinely require more time.

         The role of our administrative judges would change substantially as well.  Thousands of employees request hearings each year, yet only a small fraction of those matters ultimately proceed to an evidentiary hearing.  Meanwhile, the cases that do require substantial administrative judge involvement can languish for years.

         The proposed rule seeks to marshal that adjudicative expertise, concentrating it on appeals where testimony, credibility determinations, additional factual development, and other proceedings are actually needed.  That is a consequential change.  The standards governing referral, therefore, need to be clear and workable, and they need to reliably identify the cases in which an administrative judge can materially aid the Commission's review.

         Much of the proposed rule is less sweeping.  It updates filing and service, clarifies provisions that have become difficult to administer, and brings greater coherence to requirements that have developed unevenly over time.  It also revisits the treatment of attorney's fees and implements statutory requirements enacted through the Cummings Act.  These changes may attract less attention than the restructuring of hearings or the pre-complaint process, but clarity and consistency map in a regulatory scheme that thousands of employees and practitioners have to navigate on a daily basis.

         I hope commenters will do more than identify their concerns.  If they disagree with something in the proposed rule, I hope they would tell us what they would do instead and why.  If a filing period is too short in their view, tell us what period makes sense and why.  If a referral standard is unclear in their view, tell us how to sharpen it.  And where a procedure should be preserved, explain what function it serves and whether that function can be preserved more efficiently.

         A proposal of this scope requires serious engagement.  I support the direction of this rulemaking, and the comments we receive will help us determine which approaches should remain, which should change, and where a different approach may work better.  Throughout this process, our focus should remain on building a federal sector system that delivers fair, accurate, and timely resolution to the employees who rely on it.  Thank you.

         CHAIR LUCAS:  Thank you.  We'll now turn to the second round of discussion.  I'll reserve my portion for the end.  So we'll start with Commissioner Kotagal.

         COMMISSIONER KOTAGAL:  Thank you.  For 50 years, the federal government has provided an administrative process for federal sector class complaints.  In just FY23 and '24, the federal sector hearings program secured $175 million for workers in significant class action settlements.  Today's proposal considers whether to turn back time, kneecapping workers' ability to challenge systemic discrimination.

         The proposal to eliminate administrative class complaints, from my perspective, is unfair and short-sighted.  There is a raft of authority on the benefits of the class action vehicle.  Class actions enable workers to challenge broad patterns of discrimination, making workplaces safer and more accessible.  They promote efficiencies by ensuring that systemic issues impacting many claimants do not have to be heard individually.

         They advance access to justice, for example, by spreading costs among claimants.  This is particularly important for small-dollar individual recoveries, where no individual worker has an incentive to bring the case.  Injustices persist.  And class actions protect the interests of agencies against inconsistent obligations and determinations.

         The proposal trivializes the elimination of administrative class complaints, arguing that workers are free to pursue class claims in court.  But one of the goals of the federal sector program is to address federal sector claims of discrimination administratively in order to reduce the burden on courts.  Administrative class complaints allow workers to challenge systemic discrimination in a more informal and less costly setting, and an administrative process enables agencies to address issues early before they fester.

         The proposed framework allows for individual complaints raising similar issues to be heard together, but not as class actions.  It is both inefficient and unjust.  It will limit relief for employees who would otherwise be class members, and who instead must pursue individual relief to challenge widespread issues.  We can expect that many workers will not be able to do so.

         As a former class action litigator myself, I can confirm that class actions are complicated and time-consuming.  No matter what forum they're in, but depriving workers of their rights, risking inconsistent determinations, and inundating courts is not the answer.  We should not be closing agency doors, denying workers investigations, and final agency decisions as a resource conservation strategy.  There are less drastic alternatives, like establishing a specialized unit of AJs who are experts in the complexity of class complaints, leading to greater efficiencies.

         Class complaints promote equal opportunity.  The EEOC and my own experience prove that.  I actually represented a class of disabled veterans who challenged a policy of improper pre-employment medical inquiries at the U.S. Postal Service.  An AJ at the EEOC certified a class encompassing postal service districts across the country, and the case ultimately settled for more than $11 million, providing relief to thousands of victims.

         In another more recent case, two class agents challenged NASA's performance evaluation system as having a race-based disparate impact on Black and Asian workers.  Unfortunately, the commission recently voted to decertify that class, even as we consider a proposal to do away with class complaints entirely.  As I've explained, the federal sector process is complicated.  There is certainly room for improvement, but I believe these reforms are rushed and misguided.  As such, I have several motions.

         Prior efforts focused on major changes to the federal sector regulations, like the 1999 and 2012 final rules, were based on the recommendation of federal sector work groups established to evaluate and improve the EEO process.  No such work group existed here.

         First, I move to postpone consideration of these changes until the Commission can form a federal sector work group to allow federal employees, EEO practitioners, researchers, advocates, and others to prepare evidence-based recommendations for reforming the federal sector process.

         CHAIR LUCAS:  Is there a second?

         COMMISSIONER KOTAGAL:  Go ahead.

         CHAIR LUCAS:  Hearing no second, proceed.

         COMMISSIONER KOTAGAL:  Since these changes will not be informed by a federal sector work group, they should, at the very least, be informed by public input.  Although this NPRM is 150 pages overhauling the entire federal sector process and raising complex questions, the public will have just 30 days to comment.  Prior changes to these regulations, including proposed changes in 1998, 2009, 2019, and 2022, provided 60-day comment periods.

         The outcome of this process will impact the rights of over 2 million federal employees.  Accordingly, I move that the notice and comment period be extended to 60 days to allow the public sufficient time to weigh in.

         CHAIR LUCAS:  Is there a second?  Hearing no second, your time has expired.  And we now move to Commissioner Panuccio for her second round of discussion.

         COMMISSIONER PANUCCIO:  Thank you Chair Lucas.  I'd like to use this remaining time to briefly respond to a couple of concerns that have been raised during today's discussion.  The first of which is that the proposed rule creates a fox in the henhouse essentially, by allowing agencies to decide their own liability without an independent hearing before an administrative judge.

         This concern is understandable, and we welcome constructive comments on how to best strike the balance and preserve meaningful independent review while addressing delays in the existing hearing process.  But agency decision-making is already a feature of the federal sector process.  Agencies investigate complaints and, in many cases, issue final agency decisions without an administrative judge ever hearing the case.  The agency doesn't get the last word, and that's critical.

         The proposed rule offers numerous options to complainants who believe the responding agency has been unfair to them.  A complainant may appeal the final agency decision to the EEOC.  In turn, the EEOC can conduct independent de novo review of the agency's decision, direct further briefing or factual development, refer issues to an AJ for discovery, testimony, credibility determinations, or a hearing.  So the administrative judges under this proposed rule would be redeployed, not removed.

         The proposed rule concentrates their expertise where it is actually needed and valuable, rather than automatically creating a separate adjudicative track whenever a hearing is requested.  So judicial review also remains available.  A complainant can ultimately bring the discrimination claim in federal court where the agency's final decision does not control the outcome.

         Secondly, I want to address the comments about eliminating counseling and other changes to the pre-complaint process that some have alleged will burden complainants.  But I think mandatory counseling deserves re-examination.  It adds another required step before an employee can file a complaint, but it produces extremely low rates of pre-complaint resolution, only 1 percent I believe, which is especially low compared with alternative dispute resolution programs which have about an 11 percent success rate.

         So the question is whether the useful functions of counseling can be preserved in a more focused and efficient way.  In addition, we've heard about class complaints, and my colleague has suggested that the elimination of those complaints will undermine systemic discrimination claims and decrease access to justice.  I respectfully disagree with her.

         The history of federal sector complaints gives us substantial reason to reconsider this process.  Class procedures are supposed to aggregate similar claims and make relief more efficient.  But instead, we've seen class matters remain unresolved for years, sometimes decades, leaving the very employees the process is meant to help waiting for relief.

         Importantly, eliminating the administrative class mechanism doesn't eliminate the underlying discrimination claims.  Employees remain free to bring individual complaints, and related matters can still be jointly adjudicated where appropriate.  The proposed rule doesn't foreclose class litigation in federal court.  It preserves the mechanism for administrative exhaustion of class claims, which allows employees to satisfy that prerequisite before seeking class-wide relief in court.

         The question is where class claims can be adjudicated most effectively.  Given the history of extraordinary delay under the existing administrative process, there is a serious argument that employees are far better served by timely adjudication of their individual claims while preserving access to class relief in federal court.  So if we do publish this proposed rule, I look forward to considering and reviewing comments on this issue as well.

         Lastly, I want to take a minute to address comments suggesting that those of us in leadership positions may have animus towards federal employees.  I believe those were the words that were used.  As someone who has served as a federal employee for about the past decade, I take umbrage with that suggestion.

         Even just a year ago, I was a career federal employee who would have had to use this system we are contemplating today if I felt that my rights had been violated.  So I'm deeply investigated -- deeply invested in ensuring we have a fair and efficient process for all of our federal employees.  And I look forward to continuing this discussion.  Thank you.

         CHAIR LUCAS:  Thank you.  And I'll conclude with my final round of comments.  I also want to add a few points of rebuttal.  First, with respect to the conflict of interest, just to reiterate, it was Congress that chose to have agencies be the one that decide their own complaints.  If there is a dispute about that, and that is a fox in the henhouse model, Congress bears responsibility to alter that.

         But instead, Congress chose to structure Title VII in a manner in which agencies first and foremost were the ones to resolve complaints internally and then to address concerns potentially about a fox in the henhouse provided for a statutory right to appeal to the EEOC.  If advocates, including my colleague on the other side, dislike that model, it is Congress, first and foremost, who they need to turn to to alter that.  The EEOC needs to regulate within the statutory structure that we've provided.

         And again, so second to that point, the idea that eliminating an automatic option to elect a hearing is eliminating a protection.  Again, the statute is silent on any hearings.  The statute is silent on any pre-complaint process.  The statute is silent on any class mechanism.  These are each regulatory creatures that the EEOC has created.  And the EEOC therefore also has the ability to consider in altering that function.

         Further, as to the hearing being a protection, realistically, the hearing often is Pandora's box that allows complainants after months of investigation by their own employer and them participating in that internal investigation process that Congress specifically statutorily provided.

         Now, there is a second bite of the apple.  And while that might sound like a protection, it often, again, turns into a labyrinth, a snare in which you may find yourself stuck for years, sometimes decades in a complex process.  That is not necessarily providing justice.  It is not necessarily providing a, quote-unquote, protection.  And again, it is not a statutory right.

         Further, as to the elimination of class complaints, again, there is no statutory reference to class complaints in Title VII.  This is a creature of regulatory creation.  And class complaints, again, we need to live in reality.  EEOC is an agency of, even at its maximum, around 2,000 employees.  And of that base, we range from 70 to 130 AJs, and yet we have responsibility for approximately 2 million workforce.  Seventy people, 100 people cannot resolve tens of thousands of class complaints.

         Class complaints in the federal sector, like any class complaint, class complaints in the private sector, they require extensive case management, class definition analysis, notice procedures, discovery management, settlement oversight, numerous individual remedial proceedings.  But we need to be realistic about the resource constraints that, again, Congress has given us based on the size of our agency and the budget that we have before us.

         One recent matter that we had before us had called for us to have 30,000, again, that's not 3,000, 30,000 individual class hearings.  That would have taken, if every single AJ did a hearing a day, it would have taken more than a year of every single person dealing with one single matter before us.  That's impossible.  It's not feasible.  So again, while my colleague does not like the structure that Congress has set before us, that is the structure that we have.

         And then finally, as to pre-counseling complaint changing, I do want to know that the NPRM, as the public will soon see if the Commission votes to adopt this, will require agencies to make pre-complaint technical assistance available, including the advertisement of rights.  Available agencies still have to pre-emptively inform employees of their rights and the FADs should still address each issue.  So they must provide rationales for every claim.  So agencies will still have obligations to provide information to their employees about their rights and responsibility.

         I yield back my time and then we'll move now to calling the question for a vote.  So the motion is to adopt the draft Notice of Proposed Rulemaking, revision of federal sector EEO complaint regulations, 29 CFR Part 1614.  We'll go to a roll call, vote for purpose of the record.  Commissioner Kotagal, how do you vote?

         COMMISSIONER KOTAGAL:  I vote no.

         CHAIR LUCAS:  Commissioner Panuccio, how do you vote?

         COMMISSIONER PANUCCIO:  I vote yes.

         CHAIR LUCAS:  And I vote yes.  And with that, the motion to adopt the draft NPRM is approved by a vote of two to one.  The second issue that was noticed on our agenda for Sunshine Act purposes, the EEOC strategic plan for fiscal year 2026 to 2030 was approved earlier this week through notational vote with Commissioner Panuccio and I voting yes and Commissioner Kotagal voting no for a two to one vote.  Therefore, we will not be addressing it at this meeting.  With no further matters on the agenda, I move to adjourn the meeting.  Is there a second?

         COMMISSIONER PANUCCIO:  Yes, I second.

         CHAIR LUCAS:  Okay.  The meeting is adjourned.  Thank you very much.

         (Whereupon, the above-entitled matter went off the record)

C E R T I F I C A T E

I hereby certify that the attached transcription is to the best of my belief and ability a true, accurate, and complete record of the above referenced proceedings as contained on the provided audio recording.

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Transcriber