The EEOC gets 7,514 requests a year for a hearing before its administrative judges and holds 304 of them, and it now proposes to stop taking the requests

Twenty-five hearing requests for every hearing. That is the ratio at the centre of a proposed rule the Equal Employment Opportunity Commission published on Friday, and the conclusion it draws is that the requests should stop.

Under the current part 1614 process, a federal employee or applicant who files a discrimination complaint goes through pre-complaint counselling, the employing agency investigates, and the complainant may then ask the Commission for a hearing before an administrative judge. The proposed rule would end the counselling requirement and remove the hearing request. The employing agency would issue a final decision first, and a complainant could seek an administrative judge only on appeal, with the Commission ordering one only where it considers it necessary or efficient.

The numbers the Commission is arguing from

From fiscal 2017 through fiscal 2025 the Commission received an average of 7,514 hearing requests a year. An average of 304 of them, 4 percent, reached an evidentiary hearing. An average of 128, 1.7 percent, ended in a finding of liability against an agency. Settlements accounted for 27.1 percent, an average of 2,283 a year.

The Commission puts the second ratio at nearly fifty-nine hearing requests for every case that produced agency liability.

And the delay

From fiscal 2021 through fiscal 2025, a complaint in the hearing process took an average of 442 days from the docketing of the hearing request to a decision by the administrative judge. That figure excludes counselling, the agency investigation, and anything that happens after the decision.

The averages for complainants who won are longer, not shorter. A successful complainant waited an average of 962 days. One in four waited 1,190 days or more. One in ten waited 1,661 days or more, which is four and a half years from docketing to relief.

Class complaints go

The rule would eliminate administrative class complaints under part 1614. Agencies and administrative judges would no longer certify a class, appoint a class agent, issue class notice, approve a class settlement or adjudicate class-wide relief. A complainant could still assert a class claim, and doing so would still satisfy administrative exhaustion, but the claim would be processed as an individual complaint.

Related individual complaints could be joined and processed together.

The other half of the rule

The same document implements the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020, which amended the No FEAR Act. Agencies would have to post notice when a final finding of discrimination is made against them, report disciplinary action, expand their published data, run a complaint tracking system, and note certain adverse actions in personnel records. The Commission costs that implementation at $4,733,562 and estimates that 20 percent of the 278 covered entities would need additional resources for it.

Subpart A would also be revised to reflect the Act's direction that an agency's EEO director report directly to the agency head.

What survives

The statute is unchanged, and so is the exit from the administrative process. A federal complainant who exhausts it may still bring a fresh civil action in federal district court. The Commission's argument for shrinking the administrative stage rests on West v. Gibson, which it cites for the proposition that the process was meant to be quicker, less formal and less expensive than that court case, and on section 2000e-16(c), which requires final action from the employing agency and then an appeal.

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