Labor & Employment Law Daily Wrap Up, EEOC NEWS—Commission votes 2-1 to propose overhaul of EEOC’s federal-sector EEO complaint process, (Aug 27, 2026)

By Brandi O. Brown, J.D.

“The EEOC’s proposal will make it harder for federal employees to challenge discrimination and easier for agencies to evade responsibility,” said Commissioner Kapana, who voted against it.

Yesterday, the EEOC commissioners met to discuss a proposal to revise the federal-sector EEO complaint regulations. The final vote was 2 to 1 in favor of the proposal and the NPRM has already been scheduled to appear in tomorrow’s Federal Register publication.

“Under Title VII of the Civil Rights Act of 1964 and other federal employment discrimination statutes,” the same-day press release announcing the decision explained, “the U.S. Equal Employment Opportunity Commission (EEOC) is responsible for the rules governing the workplace discrimination complaint process for federal employees and applicants. Today, the EEOC voted to issue a proposed rule (a Notice of Proposed Rulemaking or NPRM) to revise these rules.”

Although Commissioner Kotagal, the lone vote against the proposal, offered a procedural motion seeking to extend the public comment period from 30 to 60 days, her motion did not receive a second and died immediately and comments will be due. She also proposed that the rulemaking be postponed until a federal sector working group could study reforms, but that proposal likewise failed to get a second vote.

According to the commissioners, the current system is too slow and complicated and often results in federal employees and agencies waiting years for a decision. The proposed rule seeks to make the process quicker, simpler, and more effective.

“The internal complaint process for federal employees and applicants is supposed to provide a swift, informal path to resolution. But the current system is deeply broken. It fails both federal employees and their agency employers,” said EEOC Chair Andrea Lucas.

What would change? According to the release, the new rule will provide a faster process, tailored hearings, and clearer standards, as well as transparency and accountability. There will be changes to how class claims are handled, as well as how complaints should be presented, and how attorney fees will be awarded.

As discussed during the hearing, the NPRM would:

• Eliminate mandatory pre-complaint EEO counseling and replace it with direct filing.

• Extend the filing period from 45 days to 60 days.

• Replace the current employee right to elect an EEOC administrative judge hearing with a referral model, under which the EEOC would decide whether a hearing is warranted after an appeal.

• Eliminate EEOC adjudication of class complaints, leaving employees to pursue class actions in federal court after exhausting administrative remedies.

• Make broader changes intended to improve speed and efficiency.

Regarding the change to class claims, the EEOC explains that it “is a relatively small agency and not well-suited to handling large group complaints,” which would instead be handled by the courts, but it also notes that “federal employees and applicants can still use the EEOC process to start these claims and to handle related individual complaints together.”

As for transparency and accountability, the EEOC explains that, in accordance with the Cummings Act, it will increase transparency by posting more information online about complaint outcomes, disciplinary actions, and related data.

Attorney fees restrictions. With regard to attorneys’ fees, the rules governing when and how attorney fees are awarded will be updated under the NPRM, including how market rates for attorney work in the EEO process are determined. The most consequential changes appear to be related to reduced reliance on Laffey Matrix rates; tighter scrutiny of billing records and hours; greater reductions for limited success; fee cutoffs after rejected settlement offers; and restrictions on sanctions and fee recovery.

Hourly rates. Specifically, the proposal says that a reasonable hourly rate is the prevailing market rate for attorneys performing work comparable to the federal-sector EEO administrative process, not general federal litigation. It further states that fee matrices such as the Laffey Matrix are “disfavored” and are not presumptively reasonable. A fee applicant would have to prove with specific evidence that the matrix reflects rates for work comparable to federal-sector EEO administrative practice. Otherwise, the matrix gets no weight.

It retains the lodestar approach but adds restrictions and documentation requirements. The attorney would bear the burden of proving entitlement to fees; hours worked; hourly rate; and the relationship between work and relief obtained.

Scrutiny. It also expands the grounds for cutting fees, expressly excluding compensation for: excessive hours; redundant work; unnecessary work; clerical or secretarial tasks; inadequately documented time; work unrelated to successful claims; work on frivolous or groundless claims; and work performed after rejection of a qualifying settlement offer.

Among other changes are those relating to reduction of fee awards in circumstances where a complainant obtains only nominal relief, technical relief, or de minimis relief without meaningful practical benefit. There would also be restrictions in mixed-motive cases and restrictions relating to proposed offer-of-resolutions that are rejected (similar to Rule 68). As for fee agreements and nonprofit, union, or pro bono representation, it states that the agreement or representation is “relevant evidence, but does not by itself establish or cap the reasonable fee unless applicable law requires otherwise.”

The proposed rule is prospective, the EEOC notes, and would not affect complaints currently being processed.

Kotagal spoke strongly against it. At the hearing, Commissioner Kotagal argued the proposal would:

• Remove important procedural safeguards.

• Eliminate workers’ right to an impartial EEOC hearing.

• Increase agency control over discrimination complaints.

• Make systemic discrimination harder to challenge.

• Fail to address longstanding structural problems.

She explained, “The EEOC’s proposal will make it harder for federal employees to challenge discrimination and easier for agencies to evade responsibility.”

Kotagal also tied the proposal to broader Trump administration actions affecting the federal workforce, claiming that “Now, it is coming for federal employees’ civil rights.” Regarding OMB leadership, she added, “This administration has been determined to penalize federal workers.”

She said that this was the case even though the federal government is supposed to be a model employer, which “includes holding itself accountable.”

Class actions should remain. Kotagal was particularly concerned by the proposal’s changes with regards to class actions. She strongly opposed eliminating administrative class complaints. She noted that in FY 2023-24, class settlements produced $175 million for workers in class action settlements. She argued that class complaints improve efficiency, access to justice, and accountability.

“Today’s proposal considers whether to turn back time,” she argued, “kneecapping workers’ ability to challenge systemic discrimination.”

Once the proposed rule is published in the Federal Register (it is due to be published tomorrow), comments can be made online for 30 days at https://www.regulations.gov/.

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