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- Questions for The EEOC Regarding Proposed Amendments To 29 C.F.R. Part 1614
Questions for The EEOC Regarding Proposed Amendments To 29 C.F.R. Part 1614
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- Why should a federal employee's existing ability to request an EEOC Administrative Judge be converted into a discretionary decision by the Commission? What civil-rights problem is solved by taking that choice away from the employee? What does the Commission anticipate will happen to the number of cases heard by Administrative Judges under the proposed rule at §1614.406? Has the Commission quantified the expected reduction from the current system? (Proposed Rule at pp. 23-24, 27, 29-31).
- The proposed rule would permit the agency to investigate and issue the initial merits decision, after which the employee must appeal and persuade the Commission that an Administrative Judge proceeding is “necessary or efficient.” What safeguards prevent that structure from effectively allowing the agency's investigative record to determine whether the employee receives independent adjudication? (Proposed Rule at pp. 58-60).
- Reliance on Potentially Biased Agency Decision-Making: The proposed rule places greater responsibility on agencies to investigate complaints and issue final merits decisions before any independent EEOC review occurs. This raises concerns regarding agencies with historically high complaint volumes or findings of discrimination and whether affected employees can reasonably expect impartial investigations and adjudications. The proposal does not clearly identify additional safeguards to protect complainants from agency bias. (Proposed Rule at pp. 8, 11-12, 16, 29-30, 58-60, 70). To that end, what are the number of cases filed against each agency and each agency subpart/subdivision? Which ten agency subdivisions have received the most complaints? Does the EEOC expect these top ten agency subdivisions with the highest complaints to find themselves guilty of discrimination? Does the EEOC expect them to provide a fair investigation? What controls/policies will be in place to ensure that employees are protected from biased agencies?
- If the Commission acknowledges that some cases require live testimony, credibility determinations, or additional factual development, why should the employee have to obtain permission from the Commission before accessing that process? (Proposed Rule at pp. 8, 11-12, 59).
- Impact on EEOC Administrative Judges and Adjudicatory Capacity: By eliminating the right to request a hearing and replacing it with a discretionary referral system, the proposal substantially reduces the role of Administrative Judges in the federal-sector process. The rule does not address whether this change will result in a reduction in Administrative Judge positions, a downsizing of EEOC adjudicatory resources, or diminished institutional expertise in resolving discrimination claims. (Proposed Rule at pp. 10-13, 43-46, 69-70). What is going to be the role of EEOC administrative judges if there is no right to request a hearing? Will the positions of EEOC administrative judges be eliminated or reduced? Will the EEOC need as many judges as are currently seated? Will there be a downsizing of administrative judge positions in the EEOC?
- Independence: If the agency will investigate the complaint and ultimately issue the merits decision, what independent function does ADR serve in the proposed process? What safeguards will ensure that ADR remains meaningful rather than simply another procedural step controlled by the employing agency? (Proposed Rule at pp. 17-18, 58)
- Reduced Access to Information Regarding Filing Requirements:Under the current framework, EEO Counselors play a critical role in educating employees regarding deadlines, procedural requirements, and available rights. Eliminating the pre-complaint process raises concerns that employees unfamiliar with EEO procedures may unintentionally miss filing deadlines or fail to satisfy pleading requirements. (Proposed Rule at pp. 19, 21-24, 74-75). Under the proposed rule, how would people who experience discrimination know about the timelines and requirements, if there is no pre-complaint process?
- Uncertain Future of the EEO Counselor Role: The proposed rule creates substantial uncertainty regarding the future role of EEO Counselors. Because mandatory counselor contact would no longer exist, the proposal does not clearly explain whether agencies will continue employing EEO Counselors, redefine their responsibilities, or eliminate these positions altogether. (Proposed Rule at pp. 19, 21). What is going to be the role of the EEO counselor if the proposed rule eliminates 29 C.F.R. § 1614.105? Will the role of EEO Counselor be eliminated from all agencies? If not, what functions will remain?
- Questionable Incentive for Meaningful ADR Participation: The proposed rule continues to require agencies to maintain ADR programs while shifting responsibility for final adjudication almost entirely to the agency. This raises concerns about whether agencies will have sufficient incentive to engage in ADR in good faith when they will ultimately issue the final decision on the merits of the complaint. (Proposed Rule at pp. 17, 21, 29-30, 74). Why would the agency go through ADR if the agency is in going to be responsible for making the final decision? If the Commission believes ADR is an effective mechanism for resolving EEO disputes, why eliminate the existing pre-complaint counseling period rather than use that period to require or presumptively offer ADR?
- Failure to Consider Mandatory ADR as an Alternative to Eliminating Counseling: The proposed rule concludes that pre-complaint counseling is ineffective but does not adequately explain why mandatory ADR during the existing counseling period would not be a more effective alternative. Because the Commission's own data show ADR produces significantly more settlements than counseling, retaining the pre-complaint stage while requiring ADR appears to be a less disruptive option than eliminating the entire counseling process. (Proposed Rule at pp. 6, 74-75). Please explain why the pre-complaint process (i.e., counseling period) should not stay in place with mandatory ADR during that 30-day period.
- The EEOC’s settlement statistics demonstrate that the current counseling model may need improvement, but a low settlement rate does not necessarily establish that counseling has no value. The EEOC should distinguish between ineffective counseling and unnecessary counseling. The proposed rule appears to assume that because counseling produces relatively few settlements, the counseling process itself has little value. That conclusion does not account for other functions counselors perform, including educating employees, narrowing claims, identifying procedural issues, and facilitating ADR or voluntary resolution. The proposed rule itself recognizes that agencies would remain obligated to make reasonable efforts to resolve complaints informally and maintain ADR programs. Recommended alternative: Retaining mandatory access to EEO counseling while reforming the process, rather than eliminating it.
- Limited Ability to Obtain Discovery:The proposal eliminates the automatic hearing process and restricts discovery to circumstances in which the Commission or an Administrative Judge authorizes limited discovery following a discretionary referral. This substantially reduces a complainant's ability to obtain evidence necessary to prove discrimination claims. (Proposed Rule at pp. 8-10, 44-45, 122-123). How will complainants obtain discovery related to their claims if there is no right to request a hearing? How will the Commission ensure that an agency's Report of Investigation contains the evidence necessary for meaningful appellate review when the employee may have no right to discovery or an Administrative Judge proceeding?
- Risk of Less Thorough Investigations: The quality and completeness of Reports of Investigation may suffer because complainants will no longer have a guaranteed opportunity to obtain additional evidence through hearing-related discovery. Without this mechanism, agency investigations may become the primary evidentiary record upon which discrimination claims are decided. We do not expect the Reports of Investigation to be as robust, because without the ability to request a hearing, a complainant will not have the opportunity to obtain information and documentation to supplement the agency-controlled investigative report. (Proposed Rule at pp. 11-12, 22-23, 24-26, 70). What is the Commission's response to the concern that the proposed process places the burden on the complainant to demonstrate that an independent Administrative Judge is necessary based largely on an investigative record created and controlled by the employing agency? If the Commission determines that an Administrative Judge is not necessary based on the existing record, what mechanism exists for the complainant to demonstrate that the record itself is incomplete or that material credibility issues cannot be resolved from the written record?
- Difficulty Obtaining Critical Comparative Evidence: In cases such as non-selection claims, complainants often rely on discovery to obtain interview notes, scoring sheets, comparative qualifications, and other records necessary to assess pretext. Under the proposed framework, complainants may have limited ability to obtain such information if the agency controls both the investigation and the evidentiary record. (Proposed Rule at pp. 8-10, 24-26, 44-45). How will the complainant obtain information when the agency is the one that is in control of the investigation and the creation of the report of investigation? For example, in a non-selection case, if the agency controls the investigation and prepares the investigative record, how would a complainant obtain interview scoring sheets, the selectee's application materials or résumé, comparator information, and other records relied upon to establish that the selectee was more qualified?
- If those documents are not produced during the investigation, what mechanism allows the complainant to obtain them before the Commission decides whether an Administrative Judge proceeding is “necessary or efficient”?
- Does the Commission recognize that, in many discrimination cases, the evidence necessary to prove pretext or discriminatory intent is primarily in the possession of the employing agency? If so, how does the proposed rule provide meaningful access to that evidence?
- The Commission states that discovery can be burdensome, particularly for pro se complainants. Why is the proposed solution to limit access to an Administrative Judge rather than impose proportional discovery limits, standardized discovery, or early case management?
- What safeguards will prevent limitations on discovery from leaving complainants unable to obtain evidence exclusively within the agency's possession?
- The Commission states that summary judgment can create a procedural barrier for pro se complainants. What evidence supports the conclusion that eliminating or substantially reducing formal summary-judgment procedures will improve accuracy rather than simply shift the procedural disadvantage to another stage of the case?
- If the proposed system relies more heavily on written agency decisions and appellate review of the administrative record, how will the Commission ensure that disputed facts are not effectively resolved without the employee having a meaningful opportunity to test the agency's evidence?
- Questionable Efficiency of Eliminating Class Complaints: The proposal abolishes class complaint adjudication, eliminating an important mechanism for addressing systemic discrimination within federal agencies. The proposed language asserts that administrative class complaints are inefficient and resource intensive but provides limited analysis of whether eliminating class complaints will simply result in a larger number of individual complaints requiring separate investigations, decisions, appeals, and litigation. The Commission has not fully explained how this shift will reduce costs or improve efficiency when multiple employees challenge the same discriminatory policy or practice. (Proposed Rule at pp. 13, 31-33, 58-60, 71-74). Because the removal of class complaints will result in more individual complaints, how is the elimination of class complaints more efficient? Further, how is it more cost efficient?
- Why eliminate administrative class complaints rather than reform the certification and case-management process? What civil-rights problem is solved by preventing employees who experience the same discriminatory policy or practice from proceeding collectively?
- The Commission proposes replacing class complaints with individual complaints and joint processing. How does the Commission expect that approach to improve efficiency when employees challenging the same policy may have to pursue separate investigations, appeals, and potentially federal litigation?
- Has the Commission estimated how many additional individual complaints could result from eliminating administrative class complaints? Has it quantified the resulting effect on agency workload, EEOC workload, and federal-court litigation?
- Is the Commission concerned that eliminating administrative class complaints could make systemic discrimination more difficult to identify, prove, and remedy? If not, what evidence supports that conclusion?
- If the Commission's concern is the length and complexity of class certification proceedings, why did it choose elimination rather than expedited certification, limited discovery, firm deadlines, or other case-management reforms?
- How does joint processing differ, in practical effect and available remedies, from an administrative class proceeding when numerous employees challenge a common policy or practice?
- Class-action issue: What additional safeguards or procedural mechanisms does the Commission believe are necessary to preserve meaningful collective resolution of common claims if administrative class complaints are eliminated?
- If the commission is concerned with efficiency, why not set up a department that can not only specialize in class claims, but process them in a streamlined and more effective manner?
- What independent safeguards will exist when a complainant challenges the adequacy or impartiality of an investigation conducted by the same agency that will issue the merits decision?
- Does the Commission recognize the risk that the proposed process could be perceived as allowing the employing agency to investigate, decide, and effectively control whether the employee obtains an independent adjudicator? If not, why not?
- What specific mechanism allows an employee to challenge the adequacy of the agency investigation before the Commission relies on that investigation as the basis for deciding whether an Administrative Judge is warranted?
- What evidence demonstrates that the proposed elimination of automatic hearing requests will improve the administration of justice rather than reduce access to independent adjudication?
- Did the Commission evaluate less restrictive alternatives, including targeted referrals, proportional discovery, expedited case management, and mandatory referral when material factual or credibility disputes exist, before deciding to eliminate the employee's existing hearing election?
- What assessment did the Commission undertake of the proposed amendments' impact on the substantive enforcement of federal civil-rights protections, as opposed to merely the administrative efficiency of the EEO process?
- Did the Commission consider whether making access to an Administrative Judge discretionary and eliminating class complaints could disproportionately impair employees' ability to challenge systemic, credibility-dependent, or difficult-to-prove discrimination? If so, where is that analysis reflected in the NPRM?
- Potential Chilling Effect on Discrimination Claims:The combined elimination of counseling, hearing rights, class complaints, and broad discovery may discourage employees from pursuing discrimination claims. For many complainants, the only realistic path to a full evidentiary hearing may become federal district court litigation, which often requires retaining private counsel and incurring substantial litigation expenses. As a result, the proposal may deter victims of discrimination from seeking relief and appears to be designed to discourage employees from pursuing EEO cases; if their only real chance to get to a hearing is to go to district court, retain an attorney, and pay a retainer fee, and then incur attorney fees, then that is by definition, a “chilling effect.” (Proposed Rule at pp. 11-13, 31-33, 46-47, 72-75).
- Removing the Incentive of Attorney’s Fees: The proposed rule significantly narrows the standards governing attorney fee awards by restricting recovery of fees, particularly in instances of partial dismissal. These changes may make it more difficult for federal employees to obtain legal representation, particularly in complex cases. Further, discouraging attorney’s fees may have the effect of decreasing an agency’s willingness to engage in settlement in instances of discrimination. (Proposed Rule at pp. 14, 27-29, 49-50, 132-135) Did the Commission consider data on how reduction of attorney’s fees awarded may affect the ability of the complainants’ to protect their rights or pursue claims? How does the proposed rule affect the availability, timing, or practical recovery of attorney's fees for prevailing complainants, and what evidence supports the Commission's approach?
