The EEOC’s Recalibration: How the Agency's New Playbook Reshapes Employer Risk

Key Takeaways:

• The EEOC's new National Enforcement Plan reinforces a broader federal shift away from expansive disparate impact theories and toward claims involving intentional discrimination and disparate treatment.
• The EEOC intends to leverage recent Supreme Court decisions—including Ames, Muldrow, Bostock, and Groff—to shape future Title VII enforcement.

The NEP identifies employment practices involving diversity, equity, inclusion, and belonging (DEIB) initiatives as a potential area of enforcement focus, particularly where such programs may influence hiring, promotion, or other employment opportunities based on protected characteristics.

On June 4, 2026, the EEOC adopted a new National Enforcement Plan (NEP) that signals a shift in agency litigation priorities. The plan is another indication of a broader change in the federal government's approach to employment discrimination enforcement—away from expansive disparate impact theories and toward claims involving intentional discrimination. As we recently discussed, DOJ's Office of Legal Counsel has likewise concluded that the EEOC's existing disparate impact guidelines are unconstitutional.

A Shift Toward Intentional Discrimination

Perhaps the most consequential aspect of the new NEP is its emphasis on disparate treatment claims. The shift is significant because the NEP is intended to guide how the EEOC prioritizes its enforcement resources, suggesting that the Commission may direct greater investigative and litigation attention toward intentional discrimination theories and away from disparate impact theories based primarily on statistical disparities. Disparate treatment claims involve alleged intentional discrimination against an individual. That contrasts with disparate impact claims, which focus on facially neutral policies and procedures that allegedly have a disparate impact on individuals with protected characteristics.

The NEP therefore suggests fewer federal enforcement actions centered on statistical disparities alone and greater scrutiny of employment decisions involving differential treatment based on protected characteristics.

The NEP also identifies several categories for focused enforcement, including repeated, overt, or facially discriminatory employment policies and programs; intentional discrimination arising from broad-based employment practices; cases implicating recent Supreme Court decisions or unresolved questions of statutory interpretation; matters affecting vulnerable workers; and certain issues involving religious organizations and employers.

Supreme Court Decisions Take Center Stage

The NEP also highlights several recent Supreme Court decisions that will shape future enforcement.

Among them is Ames v. Ohio Department of Youth Services, which rejected a heightened evidentiary burden for majority-group plaintiffs asserting Title VII claims. The agency likewise identified Muldrow v. City of St. Louis, which lowered the bar for actionable employment decisions under Title VII by requiring an employee to show only some harm to a term or condition of employment, and Groff v. DeJoy, which looked at when an employer faces an undue hardship in accommodating employees’ sincerely held religious beliefs and practices. The EEOC also indicated it will continue to examine how to implement Bostock v. Clayton County, which held that Title VII protects against discrimination based on sexual orientation and gender identity.

Collectively, these decisions shed light on the range of workplace disputes likely to receive EEOC attention. Employers should expect the Commission to pursue litigation aimed at defining the contours of these evolving standards.

That increased focus on intentional disparate treatment is particularly significant for employers' DEIB-related practices. The NEP identifies such practices as an area of enforcement interest, particularly where protected characteristics factor into employment decisions. Consistent with the EEOC's emphasis on disparate treatment claims, the agency indicated it will continue to scrutinize programs and policies that consider protected characteristics in employment decisions.

What Employers Should Do Now

Taken together, these priorities suggest a reallocation of EEOC enforcement resources away from expansive disparate impact theories and toward intentional discrimination theories and cases the Commission views as capable of shaping broader legal standards.

At the same time, employers should not interpret the federal shift as eliminating disparate impact risk altogether. Private Title VII claims remain available, and state and local law may impose separate or more expansive disparate impact requirements.

Employers may consider reviewing DEIB-related initiatives, and evaluating workplace policies in light of the NEP.

For more information about this evolving legal trend, contact your Polsinelli attorney.