EEOC Issues Final Rule Revising Federal Sector Complaint Procedure

On July 24, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued a final rule modifying certain aspects of the complaint process that federal employees and applicants use if they believe federal agencies have unlawfully discriminated against them.

The final rule contains a number of revisions to 29 CFR Part 1614 (“Federal Sector Equal Employment Opportunity”):

  • The EEOC can issue notices to agencies when non-compliance is found and not corrected, as part of the EEOC’s authority to review agency programs for compliance with EEOC equal employment opportunity directives and guidelines.
  • Agencies can seek approval from the EEOC to conduct pilot projects in which the complaint processing procedures vary from the stated requirements.
  • A complaint which alleges that a proposal or preliminary step to taking a personnel action is discriminatory can be dismissed unless the complainant alleges that the proposal is retaliatory.
  • An agency that fails to complete its investigation in a timely manner must inform the complainant in writing that the investigation is not complete, provide an estimated date of completion, and remind the complainant that he or she has a current right to request a hearing or file a lawsuit.
  • An administrative judge’s decision on the merits of a class complaint is a final decision, rather than a recommended decision, which an agency can implement or appeal.

In response to over ten years of stakeholder dissatisfaction with certain elements of the process, the EEOC held a public meeting on federal sector reform. It also established a Commissioner-led Federal Sector Workgroup to obtain suggestions for reform from complainants, agencies, unions, civil rights groups, and other stakeholders. The EEOC’s final rule is a product of the recommendations of the workgroup and the comments the EEOC received from the public and during the inter-agency coordination process. The Commission will eventually provide additional guidance regarding the changes made by the final rule and continue to assess the complaint process.

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