EEOC Revises National Enforcement Plan

By Joanna Colosimo

BLOG OVERVIEW: On June 4, 2026, EEOC adopted a new National Enforcement Plan (NEP) for Fiscal Years 2025–2029, replacing the prior FY2024–2028 Strategic Enforcement Plan and marking one of the most significant shifts in federal equal employment opportunity enforcement in decades. The plan deprioritizes disparate impact claims “to the maximum degree possible” under Executive Order 14281 and instead prioritizes intentional disparate treatment and pattern-or-practice cases, while naming corporate and university DEI programs, including race- or sex-based quotas, diverse slate requirements, diversity statements, and compensation tied to demographic goals, as explicit enforcement targets.

On June 4, 2026, Equal Employment Opportunity Commission (EEOC) Chair Andrea R. Lucas signed the agency’s new National Enforcement Plan (NEP) for Fiscal Years 2025–2029^[1]. With it, EEOC quietly issued one of the most sweeping reorientations of federal equal employment opportunity enforcement in several decades. The document replaces the prior Strategic Enforcement Plan that was approved for 2024-2028, and its implications for employers, HR professionals, and employment counsel are profound.

As a note, not everyone at the commission voted for the new National Enforcement Plan. Commissioner Kalpana Kotagal, the commission’s lone Democrat and Biden appointee whose term runs through July 2027, formally dissented, describing the NEP as a ‘dramatic shift’ that would harm the agency’s ability to serve the workers it exists to protect. Her dissent, which mentions staffing shortages, morale, and the mission of the commission, is worth reading as a potential preview of what could come during the next Democratic administration.

What Is the NEP, and Why Does It Matter?

The National Enforcement Plan is EEOC’s new multi-year blueprint for deploying its investigative, mediation, and litigation resources. It guides which kinds of charges get prioritized, which industries draw scrutiny, and what legal theories the agency will advance in federal court, all of which are helpful to employers looking to navigate EEOC priorities.

The prior plan, the FY2024–2028 Strategic Enforcement Plan, emphasized systemic discrimination, pay equity, and the use of both disparate treatment and disparate impact theories. However, the new NEP eliminates disparate impact enforcement “to the maximum degree possible”^[2] and adds an explicit new priority: investigating and litigating against DEI programs at large corporations, universities, and other prominent institutions.

Deprioritization of Disparate Impact and Prioritization of Disparate Treatment

For decades, disparate impact has been a cornerstone of employment discrimination law. Under this theory, a facially neutral policy such as a standardized test or a degree requirement can constitute illegal discrimination if it disproportionately excludes members of a protected class and lacks sufficient business justification.^[3]

The NEP, citing Executive Order 14281 ("Restoring Equality of Opportunity and Meritocracy"), directs EEOC to deprioritize disparate impact claims entirely, although EEOC recognizes that disparate impact liability is a part of Title VII of the Civil Rights Act (Title VII) as amended in 1991. In other words, the commission will not commence or continue litigation based on disparate impact theory alone.

However, it is important to note this shift is EEOC-specific. State and local fair employment agencies as well as private plaintiffs retain the full ability to bring disparate impact claims. Employers should not interpret this as permission to abandon adverse impact monitoring, as exposure from non-EEOC sources remains real.^[4]

Instead of focusing on disparate impact cases, EEOC is now prioritizing both disparate treatment and disparate treatment pattern-or-practice cases. Disparate treatment theory is perceived as being more egregious in nature due to the intentional nature of the discrimination allegation.

Enforcement to Target DEI Programs

The NEP specifically names DEI programs and practices operating under similar labels as enforcement priorities, particularly those adopted by large corporations, elite universities, and financial institutions.

The NEP identifies the following as potential Title VII violations:

• Race- or sex-based quotas: including “aspirational goals” that function as quotas in practice.
• Diverse slate and diverse hiring panel policies: requirements that candidate pools or interview panels include members of demographic groups.
• Diversity statements: application or employment requirements asking candidates to describe their commitment to DEI or similar.
• Compensation tied to demographic goals: executive or manager pay structures with diversity metrics as performance criteria.^[5]

The legal theory underlying this priority is straightforward: if a practice causes an employer to make a hiring, promotion, or pay decision that takes race or sex into account, it may be considered intentional discrimination under Title VII, regardless of the employer’s stated purpose or intention. The NEP references the Supreme Court’s decision in Students for Fair Admissions v. Harvard (2023),^[6] which banned race-conscious admissions in higher education, as providing the doctrinal foundation the EEOC is now signaling it will apply in the employment context.

Gender Identity, Single-Sex Spaces, and the Narrowing of Bostock

The 2020 Supreme Court decision in Bostock v. Clayton County^[7] held that Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity. The NEP signals that the current EEOC intends to litigate cases that would narrow Bostock’s reach around two issues: single-sex spaces in the workplace and workers’ rights to express the view that sex is binary.

For employers, this may create tension. Federal EEOC policy now points in one direction while state laws in many jurisdictions point in the other direction, providing broad protection for gender identity and expression. Employers with multi-state workforces will need to navigate these competing frameworks carefully.

A Higher Bar for Religious Accommodation

The NEP also focuses on religious accommodation requests. The Supreme Court’s 2023 ruling in Groff v. DeJoy^[8] significantly raised the standard for what constitutes “undue hardship” when an employer denies a religious accommodation. As a result of this ruling, an employer must show that granting accommodation would impose a substantial burden. Mere inconvenience no longer suffices.

Under the new NEP, EEOC is expected to scrutinize accommodation denials closely. Employers should review their accommodation policies, retrain HR staff to the updated standard, and ensure interactive process documentation is thorough.

Tensions with the EEOC’s Budget Justification

There may be a wrinkle with EEOC’s new National Enforcement Plan. The budget Congress approved for EEOC was justified under a strategic plan the agency has now replaced. Specifically, EEOC’s FY2026 Congressional Budget Justification, submitted to Congress in May 2025, anchored $435 million in funding to the FY2022-2026 Strategic Plan. Chair Lucas’s budget message previewed the NEP’s DEI and national origin enforcement focus but did not outline the elimination of disparate impact enforcement.

What Employers Should Do Now

The NEP does not create new laws; therefore Title VII and the other statutes it enforces remain unchanged. What has shifted is where the EEOC is looking and what it considers problematic. Employers should consider the following actions:

• Conduct a privileged audit of your DEI program, ideally under attorney-client privilege, to identify practices that could draw an EEOC charge. DCI can assist with reviews of this nature.
• Review whether any hiring policies—such as diverse slate requirements, diverse interview panels, or diversity statements—make race/ethnicity or sex a factor in an employment decision.
• Audit executive and manager compensation structures for diversity metrics that tie pay to demographic outcomes.
• Do not abandon barrier analyses and adverse impact monitoring as state agencies and private plaintiffs are still pursuing disparate impact claims.
• Review religious accommodation policies and procedures in light of Groff v. DeJoy.
• Map your multi-state exposure on gender identity protections and prepare for potential conflicts between federal EEOC positions and state law obligations.
• Consider the type of publicly available data your organization is posting, such as disclosure of race/ethnicity and sex-based representation. This may be perceived as evidence of violations in the EEOC’s eyes.

EEOC’s new National Enforcement Plan creates a window of opportunity for employers to have insight into new priorities for EEOC. Organizations that conduct audits of their DEI programs, document their accommodations processes, and map their multi-state exposure now are best positioned for potential NEP-driven charges in the near future.

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Sources

1. EEOC National Enforcement Plan, FY2025–2029, signed June 4, 2026
2. EEOC National Enforcement Plan, FY2025–2029, signed June 4, 2026
3. Griggs v. Duke Power Co., 401 U.S. 424 (1971) (establishing disparate impact doctrine under Title VII).
4. 42 U.S.C. § 2000e et seq. State and local FEPAs and private plaintiffs retain disparate impact causes of action independent of EEOC enforcement priorities.
5. EEOC National Enforcement Plan, FY2025–2029, signed June 4, 2026
6. Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023).
7. Bostock v. Clayton County, 590 U.S. 644 (2020).
8. Groff v. DeJoy, 600 U.S. 447 (2023).