By Gerald L. Maatman, Jr., Bernadette M. Coyle, and Elizabeth G. Underwood
Duane Morris Takeaways: On August 26, 2026, the EEOC took two significant actions – finalizing its FY 2026-2030 Strategic Plan and voting to issue a Notice of Proposed Rulemaking that would fundamentally overhaul the equal employment opportunity complaint process for federal sector employees. Among other changes, the proposed rule would eliminate mandatory pre-complaint counseling, replace the automatic right to an administrative hearing with a targeted referral model, impose heightened pleading standards, and abolish administrative class complaints.
Given the EEOC’s responsibility to enforce federal anti-discrimination laws, these developments are a “must read” for employers.
EEOC Finalizes FY 2026-2030 Strategic Plan
The EEOC approved its FY 2026–2030 Strategic Plan, which carries forward the core priorities outlined in the draft released in early July: strategic enforcement, intake modernization, and outreach expansion. Key performance metrics include a target of 90% favorable resolution in enforcement lawsuits and a 2% annual reduction in intake inventory from FY 2025 baseline levels. For a detailed analysis of the plan’s provisions, see our blog post on the topic.
Proposed Rulemaking To Overhaul The Federal Sector Complaint Process
29 C.F.R. Part 1614 governs discrimination complaints against federal agencies. Under the current framework, an aggrieved employee or applicant must contact an EEO counselor at the agency where the individual works or applied for a job within 45 days of the alleged discriminatory action, participate in counseling or an alternative dispute resolution program, file a formal complaint if counseling or ADR is unsuccessful, await an agency investigation, and then either request a final decision from the agency as to whether discrimination occurred or request a hearing before an EEOC Administrative Judge.
The proposed rule would eliminate mandatory pre-complaint counseling and replace it with a direct-filing model. According to the EEOC, from 2017 to 2021, federal agencies conducted an average of 35,618 counselings per year, with only 385 cases settling at the counseling stage each year. Instead, individuals would have 60 days from the discriminatory act to file a complaint directly with the federal agency at issue. The agency would then have to investigate and issue a prompt final decision.
Another significant change is the replacement of the current automatic right to an EEOC administrative hearing with a “targeted referral model.” Under the current system, the EEOC processes an average of 7,514 hearing requests per year, yet only 4% proceed to an actual hearing, and only 1.7% result in a finding of agency liability. Average processing time from docketing to decision is 442 days, and successful complainants wait an average of over 2.5 years for resolution. Under the proposed rule, after the issuance of a final decision, the complainant may appeal to the EEOC, which could refer the case for Administrative Judge proceedings when a hearing or other additional proceedings are deemed necessary or efficient. Referral grounds include genuine disputes of material fact, credibility determinations, incomplete records, and complex issues.
The proposed rule would also eliminate administrative class complaint adjudication under Part 1614. The EEOC cited its limited resources, approximately 2,000 employees and 70 to 130 Administrative Judges responsible for a federal workforce of nearly two million individuals and characterized class complaints as a “perennial source of delay,” with some taking over a decade to resolve at the threshold certification stage alone. The proposal preserves putative class claims for administrative exhaustion purposes, meaning that employees could still pursue class actions in federal court. Related individual complaints may also be jointly processed.
Key Employer Takeaways
Although the Notice of Proposed Rulemaking applies only to the federal sector, it is part of a broader enforcement realignment that private sector employers should understand. Read alongside the EEOC’s FY 2025-2029 National Enforcement Plan and FY 2026-2030 Strategic Plan, the EEOC is signaling that it intends to concentrate its resources on specific substantive priority areas, such as DEI enforcement and disparate treatment theories, rather than casting a wide net.
Given the volatility of the EEOC’s priorities, it is more crucial than ever for employers to stay abreast of EEOC developments and comply with anti-discrimination laws.