EEOC Releases New National Enforcement Plan, Reorienting Agency Priorities

On June 4, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC” or the “Agency”) approved a new National Enforcement Plan for fiscal years 2025 through 2029 (“NEP”), rescinding and replacing the Agency’s Biden-era Strategic Enforcement Plan for fiscal years 2024 through 2028 (“SEP”). The NEP resets the framework that will guide the Agency’s activities, including with respect to investigations, litigation, amicus participation, outreach, education, and technical assistance.

The NEP does not amend (which only Congress can do) the federal anti-discrimination statutes that employers must follow. It is nevertheless important because it identifies the matters the Agency is directing staff to prioritize, the theories it intends to emphasize, and the disputes it views as having broader enforcement significance.

Read alongside Executive Order 14281, Restoring Equality of Opportunity and Meritocracy, signed on April 23, 2025, the NEP marks a pronounced pivot toward intentional discrimination claims, diversity, equity, and inclusion (“DEI”)-related race and sex discrimination, alleged “anti-American” national origin discrimination, disputes involving single-sex spaces and expression regarding the binary nature of sex, and religious accommodation and discrimination issues.

The NEP Framework

The NEP is a priority-setting and resource-allocation document, rather than a new source of legal obligations for employers. It directs the EEOC to pursue certain priorities through a three-part enforcement model: prevention through education and outreach, voluntary resolution through ADR, pre-determination settlements and conciliation, and “strong and even-handed” litigation where the Agency elects to proceed.

Disparate Treatment and Overt Discrimination

The NEP’s central enforcement move is its express prioritization of disparate-treatment theories, including pattern-or-practice claims, over disparate impact theories. Consistent with Executive Order 14281, the NEP states that the EEOC will “eliminate” the use of disparate-impact theories in investigations “to the maximum degree possible” and will not commence, develop, or continue litigation advancing disparate-impact claims. The NEP characterizes intentional discrimination as “inherently” more egregious than disparities that arise from neutral policies or practices.

The NEP gives examples of repeated or overt discrimination that may draw priority attention, including facially discriminatory policies, job advertisements that encourage or discourage applicants based on protected characteristics, staffing-agency or similar programs that exclude individuals based on protected characteristics, steering or aggregating workers into particular jobs or duties, company-wide accommodation denials, and systemic harassment. The job-advertising examples specifically include language seeking “diverse candidates” and preferences for “guest worker visa holders” or “PERM applicants.”

DEI Programs

DEI programs receive the NEP’s primary focus. The plan identifies policies, programs, and practices “labeled or framed as ‘diversity, equity, and inclusion’ (DEI) or similar euphemisms” as potential priority matters where they use race or sex in employment decisions or otherwise function as protected-characteristic preferences. Examples include race- or sex-based quotas or “aspirational goals” that function as proxies for quotas; restricting access to training, internships, fellowships, mentorship, sponsorship, or other advancement opportunities based on protected characteristics; diverse slate or diverse-hiring panel policies; requirements that candidates submit diversity statements; demographic data sharing with managers or the public; candidate rubrics that consider protected characteristics; or compensation tied to demographic goals.

Promoting Development of Law

The NEP also prioritizes cases that have the potential to shape anti-discrimination law, particularly those involving recent Supreme Court precedent, unresolved questions of statutory interpretation, circuit conflicts on NEP priority issues, or issues the Agency views as candidates for Supreme Court review. The identified legal-development priorities include:

• The application of Title VII to DEI practices and voluntary affirmative action programs after the Supreme Court’s recent decisions in Ames v. Ohio Department of Youth Services (rejecting a heightened evidentiary standard for majority-group Title VII plaintiffs), Muldrow v. St. Louis (holding that a Title VII claimant need only show “some harm” caused by an identifiable term or condition of employment), and Students for Fair Admissions (restricting the use of race-conscious admissions programs in higher education), including how courts assess identity-conscious employment practices, majority-group claims, and alleged harm to terms or conditions of employment;
• The application of the “some harm” standard adopted by the Supreme Court in Muldrow, which may broaden the range of workplace changes that may be actionable under Title VII, even if it does not result in a demotion, pay cut, or other traditional material adverse action;
• Religious accommodation obligations under Groff v. DeJoy, including the circumstances in which an employer can establish undue hardship for religious accommodations under Title VII;
• The scope of Bostock v. Clayton County applied to single-sex intimate spaces, employers’ ability to provide those spaces, expression regarding the binary nature of sex, and religious accommodations for sincerely held religious beliefs; and
• The scope of liability under the Pregnant Workers Fairness Act.

Beyond these areas, the NEP also prioritizes vulnerable-worker matters and cases involving the integrity or effectiveness of the EEOC’s enforcement process, including retaliation related to EEOC proceedings, challenges to Commission policy documents, subpoena enforcement, evidence preservation, alleged settlement breaches, and recordkeeping or reporting violations where another statutory violation may exist.

Chair Priorities

The Chair priorities complement the NEP’s substantive categories and underscore the Agency’s policy direction: (1) remedying DEI-related race and sex discrimination; (2) protecting American workers from alleged “anti-American” national origin discrimination; (3) defending women’s rights to single-sex spaces at work and workers’ rights to express the binary nature of sex; and (4) protecting religious liberty, including religious accommodations and freedom from religious discrimination, harassment, and related retaliation.

What Changed from the Prior SEP?

The prior SEP reflected a materially different enforcement orientation. It emphasized eliminating discriminatory barriers in recruitment and hiring, protecting vulnerable and underserved workers, emerging issues such as pregnancy-related protections, backlash discrimination, Long COVID, technology-related discrimination, equal pay, access to the legal system, and systemic harassment. It also stated that the EEOC would support lawful and appropriate DEI practices that identify barriers to equal employment opportunity, cultivate diverse pools of qualified workers, and foster inclusive workplaces.

The NEP narrows and redirects that framework in several respects. It prioritizes intentional discrimination and disclaims EEOC litigation based on disparate-impact theories and treats certain DEI policies, programs, and practices as potential sources of intentional race or sex discrimination. The NEP also elevates Chair priorities—“anti-American” national origin discrimination, single-sex spaces, expression regarding the binary nature of sex, and religious liberty—that were not framed as comparable priority categories in the SEP.

The shift is particularly significant with respect to AI and other selection tools. The SEP expressly prioritized technology-related employment discrimination, including artificial intelligence, machine learning, automated recruiting and selection tools, and screening practices with disproportionate effects on protected groups. The NEP’s retreat from disparate-impact enforcement makes Agency-initiated disparate-impact challenges to such tools less likely, but employers should not treat that shift as a repeal of disparate impact liability under Title VII or under potentially applicable state or local laws.

Employer Takeaways

Employers should use the NEP as a prompt to evaluate how workplace programs operate in practice, not merely how they are labeled. The following areas warrant particular review:

• Audit DEI programs for decision-making risk: Review DEI policies and initiatives to determine whether race, sex, or another protected characteristic is used or encouraged in interviewing, hiring, promotion, assignments, access to training or mentorship, compensation, or other terms and conditions of employment.
• Review recruiting language and pipelines: Revisit job postings, referral sources, fellowship and staffing agency arrangements, visa-related preferences, and candidate evaluation tools to ensure they do not encourage, discourage, channel, or classify applicants based on protected characteristics.
• Reassess demographic metrics and incentives: Treat demographic reporting, dashboards, diverse-slate practices, diversity statements, evaluation rubrics, and compensation metrics as higher-risk if they influence employment decisions or create pressure to reach protected-characteristic outcomes.
• Assess immigration and visa-related hiring practices: Programs or practices that prefer guest worker visa holders or Program Electronic Review Management (“PERM”) applicants may draw scrutiny as alleged anti-American national origin discrimination, particularly where they impact recruiting, hiring, placement or advancement opportunities.
• Strengthen accommodation and policy governance: Review religious accommodation protocols, single-sex space policies, harassment response procedures, accommodation practices, and retaliation safeguards through the lens of the NEP’s Chair priorities and legal-development agenda.
• Stay flexible: Recent years have shown how quickly Agency priorities can shift. Employers should build compliance frameworks that are durable, adaptable, and grounded in the statutory text of the anti-discrimination laws—not calibrated solely to the enforcement priorities of any particular administration. Although the EEOC’s enforcement posture has changed, disparate-impact liability remains part of the statutory landscape, and may still be asserted by private plaintiffs or pursued by state and local enforcement authorities.

Mayer Brown is available to help employers evaluate workplace policies, DEI initiatives, recruiting and hiring practices, accommodation procedures, and related governance in light of the EEOC’s updated enforcement priorities.