EEOC to Propose Rules Codifying Electronic Filing Options for Feds

The Equal Employment Opportunity Commission is set to propose new rules to better reflect the agency’s current e-filing offerings and reduce the agency’s use of paper in cases involving federal employees and agencies.

When the agency, which investigates complaints of workplace discrimination in both the federal government and the private sector, last updated its regulations a decade ago, it simply required agencies to submit complaint files and appeals to EEOC in "an acceptable digital format."

But since then, EEOC has developed two new iterations of software by which agencies and federal employees can send and receive documents related to their cases. The first, the Federal Sector EEO Portal (FedSEP), is a portal available only to federal agencies, while the EEOC’s Public Portal was designed for use by private sector employers, although it is now accessible to both employers and claimants, and it increasingly is being used in federal sector cases as well.

In proposed rules set to be published in the Federal Register on Tuesday, EEOC is seeking to update its regulations governing the transmission of documents to better reflect the use of FedSEP and EEOC’s Public Portal, as well as to cease sending documents via mail in instances where the parties have opted into using the electronic portals. The rules also stipulate that EEOC must continue sending documents via first class mail in instances where an individual either has not signed up for one of the portals or has indicated that they would prefer to be sent physical documents.

“Should this proposed rule become final, the commission will notify complainants with registered portal accounts that they will be able to access documents, orders and decisions from the commission only via the portal,” the rule states. “If, in response, a registered complainant informs the commission that the complainant would prefer receipt through first class mail, the commission will communicate with the complainant using first class mail.”

One area where EEOC is seeking clarity from the public is how the agency should decide when a document that has been sent electronically has been received, a decision that could have implications related to deadlines, such as for requesting an appeal.

“The commission especially seeks comments regarding whether its final rule should add a new subsection addressing when receipt of a commission decision transmitted through the portal is deemed to occur,” the proposal states, noting that the Merit Systems Protection Board considers documents to have been received on the same day that they’ve been submitted. “[Receipt] of a commission decision could be deemed to occur instead when a complainant accesses the decision for the first time. Or a rule could state that a commission decision is deemed to be received when the complainant accesses the decision, or within five days of when the decision is uploaded to the portal, whichever occurs first.”

EEOC is soliciting comments on its proposed regulations from now until Nov. 26.