The new National Enforcement Plan from the EEOC aligns agency activities with the White House
On June 4, 2026, the US Equal Employment Opportunity Commission (EEOC or “the Commission”) released its National Enforcement Plan (NEP) for fiscal years 2025-2029. The new plan rescinds and replaces the Biden-era Strategic Enforcement Plan (SEP) for fiscal years 2024-2028, reflecting full alignment of the agency’s activities with the current White House. The NEP commits the Commission to “using its discretion in its deployment of its enforcement authority to advance the Administration’s policy objectives and comply with relevant Executive Orders.”
This is a noteworthy departure from the independent status the Commission has maintained in the past and represents a dramatic shift in the EEOC’s enforcement philosophy and priorities.
The purpose of the plan
An “enforcement plan” has been produced by the EEOC every four years since 2012. It was created as part of the strategic planning process required by the Government Performance and Results Act 2010 Modernization Act. Its purpose has been to guide and focus the EEOC’s work over a four-year fiscal period and to communicate with the regulated community about the strategic priorities the Commission intends to address.
For example, the priorities highlighted in the Biden-era SEP included eliminating barriers in recruitment and hiring, protecting vulnerable workers and persons from underserved communities, advancing equal pay, preserving access to the legal system, preventing and remedying systemic harassment, and addressing legal issues associated with the Pregnant Workers Fairness Act, the long-term effects of COVID-19, and technology-related discrimination.
A different purpose
Instead of the civil rights framework that has characterized previous enforcement plans, the new NEP’s key purpose is to “reaffirm that [the EEOC] is an executive branch agency” and to align the agency’s law-enforcement role with White House policy objectives. It identifies several “substantive categories of priorities” which the Commission will apply “as appropriate, to investigation, conciliation, and litigation, as well as the EEOC’s amicus curiae and intervention representation.” For example:
- Cases involving potential violations that raise issues under the NEP and present a substantial likelihood of broader enforcement significance beyond the parties to the dispute.
- Cases involving intentional discrimination arising from broad-based employment policies, including, but not limited to, policies, programs, or practices that give preference to guest workers, visa holders, and applicants for labor certifications (a/k/a the PERM process), and any practice or program related to Diversity, Equity and Inclusion (DEI) initiatives.
- Cases having the potential of promoting the development of new laws supporting the anti-discrimination purposes of the statutes enforced by the Commission. Examples include cases that involve “the analysis under Title VII of certain DEI practices, programs, and policies; the scope of undue hardship in relation to religious accommodation; the obligation to provide single-sex restrooms; the legality of voluntary employer affirmative action programs; and the scope of liability under the Pregnant Workers Fairness Act.
- Cases involving “vulnerable workers,” which include “teenage workers, persons with limited literacy or education, individuals employed in low-wage jobs, survivors of sexual assault, and workers with developmental or intellectual disabilities.”
- Cases “involving the integrity or effectiveness of the Commission’s enforcement process.” These include cases “involving allegations of retaliation against persons for participating in Commission proceedings or opposing unlawful employment discrimination, particularly cases where the scope of the statutory protection against retaliation is at issue;” and cases where the employer’s defense is “rooted in a challenge to Commission policy, documents, such as guidelines, regulations, or policy guidance.”
As dramatic as this shift is, it’s also not unexpected. Commission Chair, Andrea Lucas, was clear about what to expect when she was named Acting Chair back in January 2025:
My priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.
Targets
While the core principles and policies reflected in the NEP aren’t new, the document provides helpful guidance for employers on the specific practices the Commission intends to target, such as:
• Job advertisements that, on account of a protected characteristic, exclude or discourage certain individuals from applying, or encourage certain individuals to apply, including, but not limited to, characteristics based on race or sex (e.g., black, Hispanic, Asian, white, male, female, or “diverse candidates” or other terms that are, or functionally operate, as race- or sex-based) or national origin (e.g., “guest worker visa holders” or “PERM applicants”).
• Staffing agencies, including fellowship or other similar programs, that act as a staffing agency, that exclude individuals from employment on account of a protected characteristic.
• Channeling, steering, or segregating individuals into specific jobs or job duties based on protected characteristics.
• Company-wide policies or practices that run afoul of anti-discrimination employment laws, such as mass denials of accommodations.
• Covered entities utilizing race- or sex-based quotas, including practices labeled “aspirational goals” that are proxies for quotas or otherwise encourage or incentivize race- and sex-based decision making, in any employment action, including: interviewing, hiring, staffing a particular project/client teams, layoffs, and promotions.
• Limiting access to on-the-job training, internships, fellowships, mentorship, sponsorship, pre-apprenticeship or apprenticeship programs, temp-to-hire positions, other job training or advancement opportunities, employer-sponsored groups or events, bonuses, fringe benefits, perks, and other terms, conditions, or privileges of employment.
• Requiring, permitting, or incentivizing the use of race and/or sex in employment decisions and actions (including, but not limited to, interviewing, hiring, promoting, demoting, or terminating). Such policies, programs, and practices may include but are not limited to diverse slate policies; diverse hiring panel policies; policies that require candidates to submit diversity statements; employee race or sex data shared with managers, the public, or other non-HR personnel or legal representatives; rubrics or other candidate evaluation methods that consider protected characteristics; and executive and other employee compensation or bonuses tied to employee race- or sex-based demographic goals or other diversity goals.
Abandoning Disparate Impact Enforcement
One of the most consequential provisions in the NEP concerns the disparate impact theory. The previous enforcement plan specifically incorporated the disparate impact theory to examine seemingly neutral policies and practices that produce unequal and discriminatory outcomes. A priority was examining the barriers in recruitment and hiring, particularly the use of AI in decision-making. AI may seem like a smart move that could make the process more equitable, but the algorithmic tools — and the data they work from — may sometimes be biased. This is what disparate impact analysis can reveal.
In the new NEP, the EEOC asserts that “allegations of intentional discrimination (disparate treatment) by an employer inherently are more egregious forms of discrimination than unintentional disparities between groups of employees which arise from an employer’s neutral policies or practices (disparate impact).”
And, consistent with the Trump Administration’s priorities, the EEOC asserts that it intends to follow Executive Order 14281 and “will eliminate the use of disparate impact liability theories in investigations to the maximum degree possible” and “will not commence, develop, or continue litigation advancing disparate impact claims.”
While disparate impact claims can no longer be advanced at the federal level through the EEOC, private plaintiffs, state attorneys general, and state civil rights groups remain free to pursue such claims.
What now?
This NEP represents the most detailed synopsis we have received to date about how the EEOC will pursue enforcement of what it considers discriminatory employment practices, including DEI-related policies, practices and programs. Employers are advised to revisit any programs and practices that could be labeled as DEI and understand that continuing such practices could put them squarely in the Commission’s sights. While there is significant disagreement over what is lawful and unlawful in the Trump administration’s efforts to eradicate DEI, becoming more aware of what the EEOC is specifically seeking to eradicate is worth consideration.
Employers are also advised to review their religious accommodation policies as well as their guest worker and visa-related hiring practices. The NEP elevates religious liberty to a top enforcement concern, and the document clearly reflects the administration’s focus on what it considers “anti-American national origin discrimination.”
It’s also important to note that the NEP withdrew all District Complement Plans and other local enforcement plans. Such locally tailored enforcement approaches had previously allowed individual District offices to identify region-specific vulnerable populations and enforcement targets. With those plans nullified, the EEOC is now operating out of a single national playbook. The NEP emphasizes that the EEOC must “function as a national law enforcement agency,” with Commission Chair Andrea Lucas directing the “collaboration, coordination, and communication” across all offices.
For most employers, developing a game plan to comply — or determining whether they need to modify their polices or practices in order to comply — is a good idea. For employers who are federal contractors, having a plan would be especially important if there were to be an audit before the Office of Federal Contract Compliance Programs (OFCCP) or if such an audit is pending. If you would like assistance developing your game plan — or have any other questions or concerns about how these recent developments will affect your business or organization — don’t hesitate to contact Orr & Reno.
