Working Together

On June 4, 2026, the U.S. Equal Employment Opportunity Commission (the “EEOC”) rescinded its Strategic Enforcement Plan for Fiscal Years 2024–2028 (previously adopted during the Biden administration) and replaced it with a new National Enforcement Plan (the “NEP”) covering Fiscal Years 2025–2029. The shift has direct implications for employers navigating workplace anti-discrimination compliance.

The NEP establishes a "three-pronged approach" for EEOC efforts to eliminate workplace discrimination:

(1) prevention through education and outreach;
(2) voluntary resolution of disputes, including through Alternative Dispute Resolution, pre-determination settlements, and conciliation agreements; and
(3) strong and even-handed enforcement via the Commission’s litigation program.

While the approach certainly is non-controversial, the NEP also describes at least two significant changes in the EEOC’s approach to enforcement of anti-discrimination laws.

Disparate Treatment Over Disparate Impact

One of the most consequential changes outlined in the NEP is the prioritization of disparate treatment theories of liability over disparate impact claims. The NEP provides that, pursuant to Executive Order 14281, Restoring Equality of Opportunity and Meritocracy, the EEOC will "prioritize disparate treatment theories of liability (including pattern-or-practice liability)" in its enforcement activities. The NEP goes so far to state that the EEOC will "eliminate the use of disparate impact liability theories in investigations 'to the maximum degree possible'" and "will not commence, develop, or continue to pursue litigation advancing disparate impact claims." The EEOC reasons that intentional discrimination is "inherently more egregious" than unintentional disparities arising from neutral policies or practices.

For employers, this signals that the EEOC is unlikely to challenge facially neutral employment policies (think standardized testing and credential requirements) on disparate impact grounds for the foreseeable future.

A Focus on DEI Programs

The NEP also makes clear that employer policies, programs, or practices "labeled or framed as 'diversity, equity, and inclusion' (DEI) or similar euphemisms" are a top focus for the EEOC. The NEP specifically lists the following types of practices as potential intentional discrimination:

• Race- or sex-based quotas, including "aspirational goals" that function as proxies for quotas or otherwise incentivize race- and sex-based decision-making in hiring, staffing, layoffs, and promotions.
• Limiting access to training, internships, fellowships, mentorship, apprenticeship programs, employer-sponsored groups or events, bonuses, fringe benefits, and other terms and conditions of employment, on the basis of protected characteristics.
• Policies requiring, permitting, or incentivizing the use of race or sex in employment decisions, including diverse slate policies, diverse hiring panel policies, diversity statements in candidate evaluations, the sharing of employee race or sex data with managers or non-HR personnel, and executive compensation or bonuses tied to demographic goals.

The NEP lists “[r]emedying DEI-related race and sex discrimination” as a priority of the Chair of the EEOC.

Additional Priorities

The NEP also outlines additional priorities for the EEOC including: protecting vulnerable workers, including teenage workers, persons with limited literacy or education, individuals in low-wage jobs, survivors of sexual assault, and workers with developmental or intellectual disabilities; "protecting American workers from anti-American national origin discrimination”; and "protecting workers' religious liberty rights to receive religious accommodations and be free from religious discrimination, harassment, and related retaliation.”

Practical Implications for Employers

The NEP took effect on June 4, 2026, and will remain in effect until superseded, modified, or withdrawn by a majority of the Commission. A copy is available at https://www.eeoc.gov/sites/default/files/2026-06/NEP_-_signed.pdf.

Employers with DEI-related programs, diversity hiring initiatives, affirmative action plans, or demographic-based goals should undertake a careful review of those programs for potential exposure under the NEP's priority framework. Employers should be particularly attentive to whether their policies could be characterized as intentionally discriminatory.

Employers with questions and concerns about how the NEP may affect their operations should consult with experienced employment counsel. For assistance from Pullman & Comley, contact any member of our Labor, Employment Law, and Employee Benefits practice.