EEOC Announces New National Enforcement Plan

On June 4, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) replaced its traditional Strategic Enforcement Plan (SEP) with a new National Enforcement Plan (NEP) for fiscal years 2025-2026. These plans are designed to inform the public of the EEOC’s current enforcement priorities. The last SEP advised that the EEOC’s enforcement priorities were focused on disparate impact liability claims. The new NEP advises that the EEOC is adding a new focus on DEI programs that confer preferential treatment based on protected class membership.

The EEOC’s plan represents a shift in focus. It articulates a goal of investigating charges alleging intentional discrimination as part of its stated commitment to merit-based, evenhanded enforcement of civil rights laws. These priorities may not be fully aligned with the existing statutory framework and case law precedent, and the extent of any conflict remains to be determined.

DOJ Opinion

Furthermore, on June 9, 2026, the Department of Justice (DOJ) issued an opinion deeming existing EEOC disparate impact guidelines unconstitutional under Title VII of the Civil Rights Act (Title VII). These recent developments, along with the potential for legal challenges to the NEP and DOJ’s positions, may leave employers navigating potentially divergent and conflicting analyses of their workplace obligations under the civil rights laws the EEOC and DOJ enforce.

Over the decades, courts have disagreed with EEOC guidelines and legislative interpretations, and these recent actions are likely to be challenged as well. In the meantime, the EEOC’s and DOJ’s positions may be in tension with existing legal precedent, creating a period of uncertainty for employers that will require careful navigation with the assistance of legal counsel.

The Enforcement Plan and What it Means for Employers

The NEP begins by restating the EEOC’s three-pronged approach of eliminating discrimination in the workplace through prevention, voluntary resolution, and litigation. It then states that its goal is to reestablish evenhanded, merit-based enforcement of civil rights laws, indicating that if an employer’s decision-making occurs on the basis of race, sex, age, and other protected characteristics, that employer may be subject to an EEOC investigation. In addition to its existing guidelines for disparate impact liability cases, the NEP articulates a goal of investigating charges alleging intentional discrimination. The NEP further provides that the EEOC will make targeting diversity, equity, and inclusion (DEI) programs a priority, as it believes that preferential treatment based on an employee’s membership in a protected class violates Title VII.

The extent to which these positions may conflict with existing case law and statutory interpretations remains to be seen, and employers can anticipate that legal challenges may follow. In addition, state and local legislatures may respond to the EEOC and DOJ’s new directives with their own measures, potentially adding to the complexity for employers seeking to understand their obligations under applicable civil rights laws.

Employers should be aware that the EEOC will be looking to focus their enforcement efforts on programs which they deem to have the appearance of providing opportunities or preferential treatment to employees based on their membership in protected classes that are not available to all employees on an equal basis. This enforcement focus will include reverse discrimination and DEI-focused claims and initiatives such as hiring and promotion protocols, as well as training and networking opportunities to employees based on their gender, national origin, race, or other protected class membership could be targeted for enforcement proceedings. 

Given the DOJ’s recent opinion regarding disparate impact claims, employers should also be aware that these initiatives might also be the subject of litigation. The DOJ opinion cites Executive Order 14281, which states its purpose as restoring equal opportunity. The DOJ recommends that employers adopt more individual, performance-based decision-making processes that are unrelated to employees’ membership in protected classes while many federal precedents and state and local laws require employers to assess the disparate impact of their employment policies and protocols.

While the implementation of the NEP does not change the EEOC’s responsibility for enforcing the federal statutes prohibiting discrimination based upon race, gender, age, religion, disability, and any other protected classification, it requires employers to consider reviewing and potentially modifying DEI-related policies and practices.

In sum, employers should be prepared to have objective reasoning behind any of their decision-making processes, as well as be able to legally justify the practices that they use, particularly if they are DEI-based programs. Employers should also remember that while disparate impact liability may no longer be the EEOC’s focus, it is still a valid legal theory under many state and local laws. Although the EEOC states that they will no longer be investigating or pursuing litigation of disparate impact cases, the obligations employers have under state and local law regarding discrimination have not changed. In fact, as a result of these recent actions on the part of the EEOC and DOJ, state and local agencies may begin to place greater emphasis on disparate impact liability as the federal government deprioritizes those claims.

Employers need to be aware that they are in the unenviable position of managing a workplace where EEOC and DOJ guidelines may be in conflict with existing precedent, statutory interpretations and state and local law. Counsel can assist in reviewing equal opportunity programs and policies as well as job advertisements to assist in managing these potential exposures.

Originally published by CLM Magazine.