Last Updated: September 2, 2026 (NPRM published Aug 28; comment period OPEN; closes Sept 28) Reading Time: 9 min
The EEOC's proposed rewrite of the federal-sector EEO complaint process is now in the Federal Register, and the clock is running. Comments on docket EEOC-2026-0067 close September 28, 2026. After that date the Commission moves to a final rule without further public input. Here is every change in the actual proposed text, side by side with today's rule, and how to file a comment the Commission is required to answer.
Where the Rule Stands Today
| Item | Status |
|---|---|
| Commission vote | 2 to 1 on August 26, 2026 (Lucas and Panuccio for; Kotagal against) |
| Proposed rule text | Public since August 26 (EEOC PDF); Federal Register August 28 (2026-17641) |
| Comment period | Open. Closes September 28, 2026. Docket EEOC-2026-0067 |
| Effect on complaints filed today | None. Current 29 CFR Part 1614 applies |
| Final rule | Not issued; no timeline announced |
This post covers the proposal. For the step-by-step on filing a complaint under today's rules, see how to file a federal EEO complaint. For the running status board on the rewrite, see the EEO process rewrite tracker.
Every Change, Today vs. Proposed
FedTools 2026 comparison, built from the proposed regulatory text in Federal Register 2026-17641 against the current eCFR text of 29 CFR Part 1614.
| Process element | Today (29 CFR 1614) | Under the proposal | What to do before Sept 28 |
|---|---|---|---|
| Pre-complaint counseling (§1614.105) | Mandatory: contact a counselor within 45 days; 30 days of counseling, up to 90 with mediation | Eliminated. §1614.105 removed; direct filing under a new §1614.106 | If you have a live claim, use counseling now |
| Filing deadline | 15 days after the Notice of Final Interview | 60 days from the discriminatory act, the personnel action's effective date, or the most recent act in a continuing violation | Note this is longer than today's 15-day clock |
| Pleading standard | No codified standard; "sufficiently precise" | Plausibility standard: the complaint must state a plausible claim on its face, not labels or conclusions | Document dates, comparators, and statements now |
| AJ hearing election (§1614.109, .406) | After investigation, you elect an independent EEOC administrative judge hearing or an immediate agency decision | Eliminated as a right. The agency issues the first decision; only on appeal can the Commission refer a case for a discretionary hearing | Comment on §1614.406 if this is the provision that matters to you |
| Final agency decision (§1614.110) | Two paths depending on your election | Mandatory in every case, within 30 days of the record closing; the agency may request an AJ referral when it decides | No action needed now |
| Appeals (§1614.401 to .405) | Either party may appeal a final agency decision to the EEOC within 30 days | Agencies may no longer appeal their own decisions. Commission reviews de novo, targets 180 days, may refer to an AJ | No action needed now |
| Class complaints (§1614.204) | Certifiable and adjudicated; class-wide relief possible | Barred for administrative adjudication; a putative class claim survives only to preserve exhaustion | Comment on §1614.204 if you are part of a group claim |
| Joint processing (new) | Does not exist | Two or more complainants with substantially similar allegations processed together; relief is individual only | No action needed now |
| Mixed cases (§1614.301 to .310) | Separate detailed procedures for MSPB-appealable actions with discrimination claims | Consolidated into §§1614.301 to .303 and .310; no AJ hearing before the agency's final decision; elect Part 1614 or the negotiated grievance procedure, not both | If your action is MSPB-appealable, read this section closely |
| Attorney fees (§1614.501(e)) | Lodestar; rates sometimes tied to the Laffey Matrix | Lodestar retained, but rates must reflect the "EEO administrative process" market; the Laffey Matrix "would generally not be appropriate evidence" | Tell your representative |
| Offer of resolution | Mainly at the hearing stage | Available throughout; must stay open 30 days and include fees; rejecting an offer and later recovering less can forfeit later fees | No action needed now |
| Investigation deadline | 180 days (up to 360 with amendments) | 135 days, with a transition at 180 days through January 1, 2028 | No action needed now |
| Office name | Office of Federal Operations | Renamed Office of Federal Sector | Cosmetic, but it changes what you search for |
| Cummings Act (new subpart G) | No public-notice or disciplinary-reporting mandate in Part 1614 | Public notice of a discrimination finding within 90 days, posted at least a year; disciplinary-action reporting to the EEOC within 120 days; public data posting | No action needed now |
Two of the proposal's own numbers explain the direction. The EEOC says counseling settles about 1% of matters (385 of 35,618 a year, FY2017 to FY2021) against 11% through agency ADR. And of 7,514 average annual hearing requests, only 304 reached a hearing and 128 produced a liability finding.
The Number to Lead With: 7,514 to Zero
Turn the EEOC's hearing statistic around. About 7,500 federal employees a year ask for an independent judge to hear their discrimination case. Under the proposal, the number who get that request granted automatically is zero. Every independent hearing would depend on the Commission choosing to refer the case at the appeal stage, after the accused agency has already issued the first decision.
The Commission's argument is that the election delivers little: 4% of requests reach a hearing, 1.7% produce a finding, and successful complainants waited an average of 962 days for relief between FY2021 and FY2025, with a quarter waiting more than 1,190 days. Those delays are real. Whether removing the independent forum is the fix is the question the comment period exists to answer.
FedTools 2026 computation from the NPRM preamble's own cited figures.
What Does Not Change Yet
Nothing about a complaint you file this month. The proposal has no legal effect until the EEOC reviews comments, issues a final rule, and that rule reaches its effective date. Until then:
- The 45-day counselor-contact deadline still applies. Miss it and your claim is untimely under today's rule.
- The administrative judge hearing election still exists. If you are past the investigation stage, you can still elect it.
- Class complaints can still be filed and certified.
GovExec reported that the class-complaint bar would not reach cases already filed. The proposed text we reviewed did not surface a dedicated applicability section for pending complaints, so treat that as reported rather than confirmed until the final rule states it.
Who Voted How, and Why
The Commission voted 2 to 1 on August 26. Chair Andrea Lucas and Commissioner Brittany Panuccio approved the proposal; Commissioner Kalpana Kotagal dissented.
Lucas described the changes as procedural, aimed at a process where administrative judges "spend most of their time on motion practice" and which she called "susceptible to abuse," citing the multi-year delays above. Kotagal said the proposal "kneecaps" employees alleging discrimination and warned that without a guaranteed hearing or mandatory counseling, agencies have less reason to investigate promptly, leaving employees in "limbo" where EEO offices are already thin. Union statements from AFGE and NTEU opposed the hearing and class-complaint changes on the same grounds.
How to File a Comment the EEOC Has to Answer
Under the Administrative Procedure Act, the agency must respond to substantive comments in the final rule's preamble. That obligation is what gives a specific comment its weight. Generic objections get grouped and dismissed in a sentence; specific ones require an answer.
- Go to regulations.gov and search docket EEOC-2026-0067 (RIN 3046-AB46). Use the "Comment" button on the proposed rule document 2026-17641.
- Cite the section. §1614.406 for the hearing referral change. §1614.204 for the class-complaint bar. §1614.105 for counseling. §1614.106(c) for the plausibility pleading standard. §1614.501(e) for attorney fees.
- Describe a concrete effect. A pending claim at the investigation stage. A group of employees affected by one policy. A rural office where the nearest EEO counselor is a phone number. Specifics are what the Commission cannot wave away.
- Propose an alternative. Keep the hearing election but impose a deadline on AJ decisions. Keep class complaints with a tighter certification standard. Alternatives force a written response.
- Submit before September 28, 2026. Regulations.gov normally closes at 11 p.m. Eastern on the last day; confirm on the docket page. Comments are posted publicly without change, so leave out anything you would not want searchable.
Agency contact listed in the notice: Raymond Peeler, Associate Legal Counsel, EEOC, (202) 921-3240.
If a Discrimination Claim Is Tangled With a RIF
The mixed-case changes matter most for employees whose discrimination claim rides on a removal, demotion, or RIF. Those actions now route to OPM under the September 2 rules rather than the MSPB, and the EEOC proposal would strip the pre-decision hearing from mixed cases too. If a separation is on the table, know your numbers first: the Severance Pay Calculator shows what an involuntary separation pays under 5 U.S.C. § 5595 while the process plays out. Estimate your severance →
Frequently Asked Questions
What is the EEOC proposed rule comment deadline (September 28, 2026)?
September 28, 2026, thirty days after the August 28, 2026 Federal Register publication of document 2026-17641. Comments go to docket EEOC-2026-0067 (RIN 3046-AB46) at regulations.gov. Check the docket page for the exact cutoff time; regulations.gov normally closes at 11
p.m. Eastern on the last day.Does the proposed rule change anything for a complaint I have open right now?
No. This is a proposed rule, not a final one. Current 29 CFR Part 1614 procedures, including pre-complaint counseling and the administrative judge hearing election, stay in force until a final rule takes effect on its own date. If you have a live claim, use the counseling and hearing rights that exist today.
What is the single biggest change in the proposal?
Removing your right to elect an EEOC administrative judge hearing before the agency decides your case. Today you choose between an independent hearing and an agency decision after the investigation. Under the proposal the accused agency decides first, and an independent hearing happens only if the Commission grants a discretionary referral on appeal.
Is pre-complaint EEO counseling really being eliminated?
Yes. The proposed text removes and reserves section 1614.105 and replaces it with direct filing under a new section 1614.106. The EEOC's own justification is that counseling settles about 1% of matters versus 11% through agency alternative dispute resolution, which would remain available but not required.
What happens to class complaints under the proposal?
Administrative class-complaint adjudication would be barred. A putative class claim could still be asserted, but only to preserve the right to exhaust the administrative process before going to court. A new joint-processing mechanism would let similarly situated employees be investigated together, with individual relief only.
Does the proposed rule make anything easier for employees?
A few provisions do. The filing window would become a uniform 60 days from the discriminatory act instead of 15 days after counseling ends. Agencies would lose the ability to appeal their own final decisions. New Cummings Act provisions would require agencies to post discrimination findings publicly and report disciplinary action to the EEOC.
How many federal employees would lose the hearing election each year?
The EEOC's own preamble cites an average of 7,514 administrative judge hearing requests a year. Under the proposal, the number of those requests granted automatically drops from 7,514 to zero; every independent hearing would depend on a discretionary Commission referral at the appeal stage.
How does this relate to the September 2 changes to MSPB appeal rights?
They are separate tracks that overlap in mixed cases. OPM's September 2 rules moved RIF, probationary, and suitability appeals from the MSPB to OPM. The EEOC proposal rewrites the discrimination-complaint process. The proposal also consolidates the mixed-case sections and removes the pre-decision hearing in mixed cases.
How do I submit a comment that the EEOC has to answer?
File at regulations.gov under docket EEOC-2026-0067 before September 28, 2026. Cite the specific section you are addressing, such as 1614.406 hearing referrals or 1614.204 class complaints, describe the concrete effect on a real type of case, and propose an alternative. The EEOC must respond to substantive comments in the final rule's preamble.
Related Resources
- How to File a Federal EEO Complaint: The step-by-step under today's rules, which still govern.
- EEOC Federal EEO Process Rewrite Tracker: Running status board for the rule.
- Federal Appeal Rights Change September 2: The OPM rules that moved RIF and suitability appeals, now in effect.
- Severance Pay Calculator: What an involuntary separation pays.
Sources: Federal Register 2026-17641, Federal Sector Equal Employment Opportunity (Aug. 28, 2026); EEOC NPRM text (Aug. 26, 2026); 29 CFR Part 1614 (eCFR); EEOC FY2024 Annual Performance Report; GovExec and Federal News Network coverage of the Aug. 26 vote.