The EEOC’s National Enforcement Plan: What the New Playbook Means for Employers

Legal Alert

June 5, 2026

On June 4, 2026, the Equal Employment Opportunity Commission adopted its National Enforcement Plan for FY 2025–2029, replacing the Biden-era Strategic Enforcement Plan and formally codifying the enforcement trajectory that Chair Andrea Lucas has been executing since taking control of the agency. The NEP is a litigation blueprint that identifies specific employer practices as enforcement priorities, abandons an entire category of liability theory, and signals the Supreme Court precedent the EEOC intends to develop over the next four years.

The EEOC’s FY 2025 enforcement record already demonstrated what this agency would do with fewer resources and a sharper ideological focus: $660 million in recoveries, $528 million of it pre-litigation, and targeted enforcement actions against law firms, universities, and major employers over their diversity programs. The NEP now codifies that posture into a durable, multi-year framework that remains in effect until withdrawn by a majority vote of the Commission, meaning it will outlast any single appointment.

I. The Key Shifts

Disparate impact is out. The NEP states that the EEOC will eliminate the use of disparate impact liability theories in investigations “to the maximum degree possible” pursuant to Executive Order 14281, and will not commence, develop, or continue to pursue litigation advancing disparate impact claims. This is historically significant: the agency is voluntarily walking away from a statutory tool that Congress codified in 1991. But employers should not mistake the EEOC’s retreat for the disappearance of disparate impact liability. Private plaintiffs, state attorneys general, and state civil rights agencies retain full authority to bring these claims. The enforcement landscape is fragmenting, not simplifying.

The EEOC has declared itself an executive branch agency. The NEP states that the Commission “reaffirms that it is an executive branch agency” and will use its enforcement discretion to “advance the Administration’s policy objectives and comply with relevant Executive Orders.” For an agency that has historically exercised a degree of independence from the White House, this is a meaningful institutional realignment. The EEOC’s enforcement priorities will now track executive orders, including EO 14173 (contractor certifications), EO 14281 (disparate impact), and EO 14398 (mandatory contract clauses), rather than operating on an independent regulatory mandate.

Headquarters controls the docket. The NEP establishes a centralized nationwide enforcement model under which headquarters can reassign investigations and cases across district offices, deploy personnel from one office to bolster another, and coordinate enforcement strategy through the Office of Field Programs and the Office of General Counsel. Employers should no longer assume that an investigation originating in a particular district office will stay there or be handled according to local practice.

II. The DEI Enforcement Roadmap

The most operationally significant section of the NEP is its detailed catalog of employer practices the EEOC considers potentially unlawful. Rather than describing enforcement priorities in general terms, the NEP identifies specific programs, policies, and practices— what it calls policies “labeled or framed as “diversity, equity, and inclusion” (DEI) or similar euphemisms, often adopted by large corporations, prominent universities, and other elite institutions”—as enforcement targets. This specificity transforms the NEP from a policy statement into a litigation roadmap, useful not only to EEOC investigators but also to private plaintiffs’ attorneys who will cite the agency’s own framework when bringing claims under Title VII of the Civil Rights Act.

The NEP targets, among other practices: race- or sex-based quotas, including “practices labeled “aspirational goals” that are proxies for quotas”; diverse slate and diverse hiring panel policies; diversity statement requirements; employee race or sex data shared with managers or non-HR personnel; evaluation rubrics that consider protected characteristics; and executive compensation tied to diversity goals. It also identifies restricted-access training, mentoring, fellowship, and sponsorship programs.

Employers who have followed the IBM False Claims Act settlement and the July 2025 AG Memorandum will note the overlap: the practices the DOJ characterized as FCA-actionable fraud are the same practices the NEP identifies as EEOC enforcement priorities. The convergence is not coincidental. It reflects a coordinated federal enforcement architecture in which the same employer conduct can trigger EEOC investigation, DOJ enforcement, FCA qui tam liability, and private Title VII claims simultaneously.

Two additional signals in the NEP warrant close attention. First, the NEP specifically identifies voluntary affirmative action programs under United Steelworkers v. Weber and Johnson v. Santa Clara County Transportation Agency for reassessment in light of three recent U.S. Supreme Court decisions—Ames, Muldrow, and Students for Fair Admissions. The Weber-Johnson framework has permitted voluntary affirmative action programs meeting certain conditions for over four decades. The NEP signals the EEOC will seek test cases to challenge that framework, and employers maintaining legacy affirmative action plans should evaluate them before they become the test case.

Second, the NEP identifies four specific issues under Bostock v. Clayton County for “clarification”: employees’ right to single-sex intimate spaces; employers’ right to provide the same; employees’ and employers’ right to express the binary nature of sex; and employees’ right to religious accommodations for sincerely held beliefs. This is the agency defining Bostock‘s reach by subtraction, i.e., telling courts and litigants what it believes Bostock does not require.

III. What Employers Should Do Now

Audit DEI programs under privilege. The NEP’s enforcement catalog provides the most specific federal guidance to date on which employer practices the government considers potentially discriminatory. Conduct a privileged review of all diversity initiatives—aspirational goals, diverse slate policies, restricted-access programs, and compensation tied to demographic metrics—against the NEP’s framework and the DOJ’s IBM settlement categories.
Reassess voluntary affirmative action programs. If your organization maintains a voluntary affirmative action plan under the Weber-Johnson framework, the NEP signals the legal landscape for these programs is shifting. Evaluate whether your plan can withstand challenge under the EEOC’s post-Ames, post-SFFA enforcement theory.
Review job postings and recruitment materials. The NEP identifies advertisements referencing “diverse candidates” or equivalent terms as enforcement priorities. Audit all active postings, template language, and third-party recruiter instructions for language that could be characterized as encouraging or discouraging applicants based on protected characteristics.
Do not assume disparate impact liability has disappeared. Private plaintiffs, state attorneys general, and state civil rights agencies retain full authority. Employers in states with robust civil rights statutes (g., Illinois, California, New York, Colorado) should maintain disparate impact compliance programs and expect state enforcement to expand as the federal retreat creates an enforcement vacuum.
Prepare for centralized investigation. The NEP’s nationwide enforcement model means an investigation originating in one district may be reassigned, expanded, or supported by headquarters personnel. Ensure your employment records and policies can withstand a coordinated, cross-district federal inquiry.

The NEP completes a federal enforcement architecture that has been under construction for 18 months. EO 14173 established the certification framework. The DOJ’s Civil Rights Fraud Initiative turned DEI practices into FCA liability. The IBM settlement proved the government would use it. The FY 2025 enforcement record demonstrated what a leaner EEOC with sharper priorities could accomplish. The NEP now codifies that enforcement posture into a multi-year plan that will outlast any single appointment or election cycle.

If you have questions about the EEOC’s National Enforcement Plan or DEI compliance, please contact your SGR attorney or Sam Mitchell at Smith, Gambrell & Russell, LLP.