Civil Law

On June 4, 2026, the Equal Employment Opportunity Commission (“EEOC”) approved its National Enforcement Plan (“NEP”) for FY2025 – FY2029, rescinding and replacing the agency’s FY2024 – FY2028 Strategic Enforcement Plan (“SEP”) before that plan’s scheduled endpoint. The NEP identifies and focuses the agency’s attention and resources on specific substantive categories of enforcement priorities including (1) “remedying DEI-related race and sex discrimination”; (2) “protecting American workers from 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 workers’ religious liberty rights to receive religious accommodations and be free from religious discrimination, harassment, and related retaliation,” among others.

The NEP marks a significant shift in the agency’s enforcement priorities from those identified in the SEP.  Most notably, the NEP prioritizes intentional discrimination, identifies certain diversity, equity, and inclusion (“DEI”)-related practices as potential sources of unlawful race or sex discrimination, limits the agency’s use of disparate-impact theories (consistent with Executive Order 14281 (“Restoring Equality of Opportunity and Meritocracy”), which directed federal agencies to eliminate the use of disparate impact liability theories in investigations “to the maximum degree possible,”), and identifies recent Supreme Court precedent—including Ames v. Ohio Department of Youth Services, Muldrow v. City of St. Louis, Students for Fair Admissions, United Steelworkers v. Weber, Johnson v. Santa Clara County Transportation Agency, Groff v. DeJoy, and Bostock v. Clayton County—as a focus for future enforcement and litigation. By contrast, the SEP had broadly prioritized eliminating recruitment and hiring barriers, protecting vulnerable and underserved workers (such as immigrant and migrant workers, workers with mental-health-related disabilities, and LGBTQI+ individuals, among others), advancing equal pay, and responding to discrimination, bias, or hate arising from local, national, or global events.

Consistent with the EEOC’s previously issued “technical assistance” documents titled “What You Should Know About DEI-Related Discrimination at Work” and “What To Do If You Experience Discrimination Related to DEI at Work” (previously discussed here), the NEP identifies certain policies, programs, or practices “labeled or framed as ‘diversity, equity, and inclusion’” as potential sources of intentional discrimination.  These include:

• Race- or sex-based quotas, including practices labeled as “aspirational goals” that function as proxies for quotas or encourage race- or sex-based decision-making in interviewing, hiring, staffing a particular project/client teams, layoffs, promotions, or other employment actions;
• Limiting access to training, internships, fellowships, mentorship, sponsorship, apprenticeship programs, employer-sponsored groups or events, bonuses, fringe benefits, perks, or other terms and conditions of employment based on race or sex;
• Diverse slate policies, diverse hiring panel policies, diversity statements, or candidate evaluation rubrics that consider protected characteristics;
• Sharing employee race or sex data with managers or other non-HR personnel; and
• Compensation or bonuses tied to demographic goals or other diversity goals.

The NEP also identifies as enforcement priorities:

• Job advertisements that exclude, discourage, or encourage applicants based on protected characteristics (including race, sex, and national origin);
• Staffing or fellowship programs that exclude individuals from employment because of protected characteristics; and
• Religious accommodation, religious liberty, and constitutional and statutory limitations on liability for religious organizations and religious employers.

In light of these announced EEOC enforcement priorities, employers should ensure they are continuing best practices to mitigate risk and ensure compliance. If you have questions about programs and practices that may be implicated by the EEOC’s new technical assistance, please contact members of Covington’s employment practice group.

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