The Nation’s Top Civil Rights Agencies Prioritize Prosecuting DEI and Eliminating Enforcement of Disparate Impact Claims

Consistent with the Trump administration’s effort to stamp out Diversity, Equity, and Inclusion (“DEI”) activities, and eliminating disparate impact liability, the nation’s top two civil rights enforcement arms recently issued written statement signaling that they intend to continue aggressively pursuing the administration’s agenda. In June 2026, the Department of Justice (“DOJ”) and the Equal Employment Opportunity Commission (“EEOC”) published documents articulating their positions on DEI-related activities and challenging the constitutionality of disparate impact liability (despite it being sanctioned by the Supreme court precedent and later codified by Congress). These documents identify clear targets for the administration and areas for employers to continue to evaluate their risks.

The EEOC published a National Enforcement Plan Fiscal Years 2025-2029 (“NEP”) on June 4. The NEP rescinds the EEOC’s prior Strategic Enforcement Plan and sets forth new priorities to guide the EEOC’s future work. The NEP expressly states that the EEOC will deploy its enforcement authority discretion “to advance the Administration’s policy objectives and comply with relevant Executive Orders” issued by the President. It also announces EEOC Chairperson Andrea Lucas’ priorities, which include: remedying DEI-related race and sex discrimination; addressing anti-American national origin employment discrimination; advancing the right to “single-sex spaces” and the right to “express the binary nature of sex”; and protecting the “religious liberty rights” of employees.

The NEP goes on to announce what civil rights violations will be prioritized and which will be de-prioritized.

Among the civil rights violations that the EEOC is de-prioritizing are cases involving employment policies and actions that adversely impact employees in a protected class, referred to as disparate impact liability. The NEP acknowledges that, beginning in 1991, Title VII authorized claims based on disparate impact. Nevertheless, it states that the EEOC will “eliminate the use of disparate impact liability theories in investigation ‘to the maximum degree possible . . . and will not commence, develop, or continue to pursue litigation advancing disparate impact claims.” This is an historic shift, given that the EEOC has long enforced civil rights laws by bringing disparate impact enforcement actions.

According to the NEP, the EEOC will prioritize enforcement actions against employers that consider one or more protected characteristic (such a race) when making employment decisions. For example, the EEOC will pursue enforcement actions against employers engaging in the following, among other, conduct.

• Employers that: explicitly seek “diverse” job applicants; explicitly encourage individuals in a protected group to apply, such as “guest worker visa holders” and “PERM applicants”; channel, steer, or segregate employees into certain roles or duties based on a protected characteristic; or engage in “mass denials of accommodations.”
• Employers with policies, practices, or programs that are “labeled or framed as [DEI] or similar euphemisms.”
• Employers that: use race- or sex-based quotas or have “aspirational goals” relating to diversity.
• Employers that encourage and incentivize the use of race or sex in decision-making.
• Employers that limit employee access to training, internships, fellowships, mentorships, sponsorships, employer-sponsored groups or events, or other opportunities, based on race, sex, or another protected characteristic.
• Employers that: require diverse slates or hiring panels; require job candidates to submit diversity statements; employ candidate evaluation methods that consider protected characteristics; or tie compensation or bonuses to diversity goals.

The NEP also announces that the EEOC intends to bring strategic lawsuits based on the Supreme Court’s recent decisions. These include: challenging DEI programs and practices following the Ames and Muldrow decisions; challenging voluntary affirmative actions programs in light of United Steelworkers; seeking clarification of the “some harm” standard applied in Muldrow; seeking clarification of the obligation to reasonably accommodate religious practices following Groff; seeking to clarify Bostock’s application to single-sex intimate spaces, the right to express the binary nature of sex, and the right to religious accommodations for sincerely held religious beliefs.

On June 9, 2026--three days after the NEP’s publication—the DOJ published Constitutionality of Disparate-Impact Liability Under Title VII. In it, the DOJ concludes that the EEOC’s longstanding approach to disparate impact liability is unconstitutional. According to the DOJ, the EEOC guidance pressured employers to racially discriminate because employers could be held liable for unequal hiring or promotion, irrespective of intent to discriminate.

The DOJ’s June 9 opinion declares unconstitutional the approach to disparate impact liability that has been used by the EEOC for decades—at least since the 1978 joint EEOC/DOJ/Department of Labor Uniform Guidelines on Employee Selection Procedures. According to the June 9 opinion, the approach to disparate impact claims must be changed in at least three significant respects.

1. For an employer to establish a “business necessity” defense, employers need only demonstrate that a challenged practice is rational, conventional, or helpful for serving a valid business purpose.
2. An employee-plaintiff must show that the challenged employment practice actually caused the alleged disparate impact, thus heightening the burden on plaintiffs to prove causation.
3. An employee-plaintiff must prove “with particular evidence” that (a) there is an available alternative practice that reduces the disparity of impact and (b) would be “equally effective” at achieving the employer’s valid business purpose.

Unless the law further develops in this area to support the DOJ’s opinion, and despite the EEOC’s decision to halt enforcement of disparate liability claims, plaintiffs will continue to file these cases.

In addition to relaxing the burdens on defendant-employers and increasing the burdens on plaintiff-employees, the DOJ’s June 9 opinion sharply criticizes certain of the tools historically available to the EEOC to remedy disparate impact discrimination, such as voluntary affirmative action.

• Continue to evaluate (in connection with legal counsel and under privilege) your EEO, DEI, and related policies, practices, at all stages of employment (recruitment, onboarding, training, promotion, compensation evaluations, mentoring, resource groups, sponsorship allocation, separation, etc.) against both existing laws and the prosecutorial positions of the federal administrative agencies.
• Ensure that internal- and external-facing materials comply with law and incorporate updates that have been made to your policies and/or programs.
• Consult with legal counsel on whether and how to validate programs in the wake of the DOJ’s opinion and depending on applicable state law.