The United States Equal Employment Opportunity Commission (“EEOC”) is the nation’s primary workplace discrimination authority. Since its establishment as part of the Civil Rights Act of 1964, the federal agency has maintained jurisdiction over the investigation, mediation, and, in some instances, litigation of employment-based complaints.

As the EEOC is an executive branch entity, the federal administration strongly influences how and where it deploys its resources during the administration’s tenure. Since the start of President Trump’s second term, the EEOC has seen a staff reduction of approximately 10%. The agency has also shifted its enforcement priorities, evidenced by the EEOC’s moving in February 2025 to dismiss six of its own sexual orientation and gender identity discrimination complaints, citing a shift in policy to comply with the President’s executive orders, and more recently, by rolling back EEO-1 reporting, the agency’s demographic data collection practice dating back to 1966.

Even more recently, two major developments offer insight into how the agency is shifting its attention and execution of its administrative priorities. The first is the EEOC’s June 4, 2026 announcement of its new National Enforcement Plan, which is the agency’s outline for how it plans to focus its efforts and deploy its budget in fiscal years 2025-2029. The plan indicates that, in keeping up with the administration’s emphasis on eliminating DEI-based initiatives (see, e.g., here), the EEOC will not only investigate discrimination in the form of lost opportunities due to employees’ protected characteristics, but also the encouragement of opportunities based on protected characteristics. This means the agency will investigate the lawfulness of race or sex-based quota policies, the legitimacy of opportunities only being accessible to certain subsets of employees and any employment practice that involves overt prioritization of employees or candidates for any reason other than merit. In addition, the EEOC outlined EEOC Chairperson Andrea Lucas’s priorities, including protecting workers from anti-American national origin discrimination and protecting single-sex spaces in the workplace.

In the National Enforcement Plan, the EEOC identifies its first substantive enforcement priority as “cases involving repeated or overt discrimination.” Although ongoing, overt discrimination seems an obvious reason for agency action, the language also hints at the agency’s ongoing effort to redefine what is  “discrimination” in the workplace under Title VII of the Civil Rights Act. Disparate treatment refers to policies, practices or employment decisions that are intentionally discriminatory. However, since the enactment of Title VII, discrimination law has evolved to recognize disparate impact discrimination referring to policies or practices that are facially neutral but because of their unintended adverse impact on a protected group of employees, they are deemed discriminatory in practice. Over the years, the law has developed in this space to generally include both disparate treatment and disparate impact as grounds for a discrimination complaint.

The EEOC seems poised to back away from disparate impact as a viable basis for alleging discrimination. In addition to the EEOC’s language in its National Enforcement Plan focusing on “overt discrimination,” the EEOC solicited an opinion from the Department of Justice’s (DOJ) Office of Legal Counsel regarding the constitutionality of disparate impact liability theory. As it was invited to do, the DOJ Office of Legal Counsel issued a memorandum opinion on June 9, 2026 arguing that disparate impact liability runs afoul of constitutional principles, specifically equal protection under the law, and it must be reined in via a more stringent read of Title VII. Further, the DOJ opined that the existing “business necessity” defense to discrimination complaints should be interpreted more broadly to allow employers space to make decisions based on their unique business needs and resources, and argues further that in order to state a claim based on disparate impact, putative plaintiffs must articulate viable alternatives to the challenged practice that would still meet the employer’s legitimate business goals. Finally, the DOJ opinion identifies past EEOC opinions, rules and non-binding guidance materials regarding disparate impact analysis that it deems unconstitutional under this reasoning, arguing that these earlier EEOC publications conflict with the text of Title VII.

These recent administrative actions signal the EEOC’s intention to align its enforcement priorities and execution with the Administration’s conservative strategy. The EEOC is no stranger to shifting policies in keeping with changing administrations, but while these recent actions may mark a new era for the agency and federal employment law priorities, employers are nonetheless urged to consult with counsel to ensure their actions continue to comport with state and local administrative agency priorities and legal guidance.