EEOC issues new National Enforcement Plan with renewed focus on employer DEI programs

We highlighted in a previous alert that employers should expect continued and intensified federal scrutiny of workplace diversity, equity and inclusion (DEI) programs and initiatives. Indeed, on June 4, 2026, the Equal Employment Opportunity Commission (EEOC) issued its “National Enforcement Plan Fiscal Years 2025 – 2029” (NEP), rescinding in its entirety the agency’s prior “Strategic Enforcement Plan Fiscal Years 2024 – 2028” (SEP). The NEP makes clear that employer DEI programs — including those that have been restructured or rebranded — will be a central focus of the agency’s investigative and litigation activities for the foreseeable future.

Content of the NEP

The NEP aims to focus the agency’s priorities in line with Trump administration directives, Supreme Court precedent and prior EEOC guidance regarding DEI. Unlike prior EEOC actions on DEI, including but not limited to its March 2025 guidance titled “What You Should Know About DEI-Related Discrimination at Work” and letters from EEOC Chair Andrea Lucas, the NEP is a strategic document that formally institutionalizes enforcement priorities across the entire agency, including all field offices and district directors, transforming policy preference into operational mandate. Importantly, the NEP identifies “remedying DEI-related race and sex discrimination” as its top enforcement priority, signaling the EEOC’s intent to scrutinize employer DEI programs by proactively investigating such programs including without any individual complaint being filed.

Specific DEI practices that the EEOC considers unlawful 

The NEP identifies a number of programs and practices that present a substantial likelihood of broader enforcement significance, including: 

• job advertisements seeking “diverse candidates,” which, according to the agency, exclude certain individuals or discourage them from applying or encourage certain individuals to apply; 
• job advertisements using terms that are, or functionally operate as, national origin discrimination, including potential references to guest worker visa holders or PERM applicants;
• race- or sex-based quotas and “aspirational goals” as proxies for quotas, which the NEP states encourage or incentivize race- and sex-based decision-making and employment actions, including interviewing, hiring, staffing of particular projects and client teams, layoffs, and promotions;
• restricted access to training, internship, mentorship and opportunity programs, which the NEP explains results in intentional discrimination against employees or applicants for employment; 
• diverse slate policies, which some employers have adopted precisely because they stop short of quotas — in the sense that they require only that a diverse pool be considered, not that a diverse candidate be selected;
• policies requiring candidates to submit diversity statements, which are often used by employers to evaluate a candidate’s unique background, personal values and specific lived experiences;
• executive compensation tied to diversity goals, including bonuses tied to employee race-or sex-based demographic goals; and
• sharing demographic data with managers or other non-HR personnel, which may indicate concern about employee data being unlawfully used to facilitate race- or sex-conscious decision-making, even if not originally intended. 

The EEOC’s discontinuation of the use of disparate impact theories in litigation 

While the EEOC acknowledges in the NEP that Title VII of the Civil Rights Act addresses disparate impact liability, it concludes that allegations of intentional discrimination (i.e., disparate treatment) by an employer “inherently are more egregious forms of discrimination than unintentional disparities between groups of employees” (i.e., disparate impact). Therefore, the EEOC will no longer commence or pursue litigation advancing disparate impact claims. The rechanneling of all enforcement resources toward disparate treatment claims means the EEOC will be focused on the intentional use of race and sex — precisely the theory under which the agency seeks to challenge DEI programs under Title VII. This statement of intent puts into effect last year’s Executive Order 14281 — Restoring Equality of Opportunity and Meritocracy, which urged the EEOC to prioritize disparate treatment theories of liability (including pattern-or-practice liability) and eliminate the use of disparate impact liability theories in investigations to the “maximum degree possible.” 

The EEOC’s intention to use Supreme Court precedent to challenge employer DEI programs

The NEP also suggests that the EEOC intends to prioritize cases that would apply or use recent Supreme Court precedent to further develop the law concerning how certain DEI practices, programs and policies may run afoul of applicable law. Those cases include the landmark case Students for Fair Admissions v. Harvard (2023), which addressed the consideration of race in college admissions but could be applied to Title VII claims that target private employer practices. In addition, the NEP references Muldrow v. St. Louis (2024), which expanded the scope of actionable employment decisions under Title VII to plaintiffs that could demonstrate they suffered “some harm” as a result of the contested employment action. And the NEP mentions Ames v. Ohio Department of Youth Services (2025), which held that majority-group members (e.g., white males) bringing Title VII discrimination claims are not required to demonstrate additional “background circumstances” supporting an inference of discrimination — a standard previously applied by some circuits that had made it more difficult for these employees to bring reverse discrimination claims. The NEP also states that the EEOC is focusing on cases that will clarify the scope of Bostock v. Clayton County (2020) regarding employees’ right to “single-sex intimate spaces” and employees’ right to “express the binary nature of sex,” as well as employees’ right to religious accommodations for sincerely held religious beliefs. 

Next steps for employers

The NEP affirms the message of prior executive orders and agency guidance: The EEOC will target policies, programs or practices labeled or framed as “diversity, equity, and inclusion” or other “similar euphemisms” or that, regardless of name, otherwise pursue goals or encourage practices that it perceives as favoring one protected class over another. Employers should expect that:

• DEI programs reframed as “belonging,” “equity and inclusion,” “fairness initiatives” or analogous terms nonetheless will face scrutiny if their underlying substance involves decision-making based on race, sex or any other protected category; 
• the EEOC will target U.S. workers by potentially challenging hiring or visa sponsorship practices that disfavor them; and 
• the EEOC will also seek opportunities to protect employees’ rights to single-sex spaces in the workplace and to religious accommodations for sincerely held religious beliefs. 

Employers that have not yet undertaken a thorough review of their DEI and other practices concerning recruitment, training, compensation and employee engagement should evaluate their current DEI policies and strategies to ensure compliance with existing federal, state and local antidiscrimination laws, and employers that have completed such a process may wish to revisit and reassess the potential risks associated with their current practices. 

*  *  *

For questions or concerns regarding any of the issues raised in this alert, please contact a member of the HSF Kramer Employment Law Department.