Written by Farrah N.W. Rifelj and Juliet M. Jacques From Michael Best & Friedrich LLP on April 2, 2026
Recent developments at the U.S. Equal Employment Opportunity Commission (EEOC) signal a meaningful shift in enforcement priorities. In late 2025, the EEOC regained a quorum following the confirmation of Andrea Lucas as the new Chair and Brittany Bull Panuccio as Commissioner. With the quorum restored, the agency has resumed setting policies, reviewing prior guidance, and voting on significant litigation matters.
For employers, these changes underscore the need to reassess DEI programs, workplace policies, and employment practices to ensure continued compliance with federal antidiscrimination laws.
DEI‑Related Discrimination as an Enforcement Priority
One of the EEOC’s most notable current priorities is what it refers to as “DEI‑related discrimination.” According to the agency, DEI initiatives, policies, programs, or practices may be unlawful under Title VII if they involve an employment action motivated, in whole or in part, by an individual’s protected characteristic.[1]
The EEOC acknowledges that DEI is a broad term that is not defined in Title VII. However, the EEOC has provided examples of practices and programs that may constitute discrimination. Notably, these examples go beyond employment hiring, firing, and promotion to include practices such as “exclusion from mentoring or sponsorship programs,” “exclusion from fellowships,” and “selection for interviews.”[2]
The EEOC also emphasized that practices which limit, segregate, or classify employees can constitute discrimination. The EEOC gave several examples:
- Limiting membership in workplace groups, such as Employee Resource Groups (ERG) or other employee affinity groups, to certain protected groups
- Separating employees into groups based on race, sex, or another protected characteristic when administering DEI or other trainings, or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources.[3]
Notably, although the EEOC announced last fall the closure of all disparate impact investigations, guidance from the EEOC suggests it could still exist for DEI-related discrimination. A memo from Attorney General Pam Bondi to recipients of federal funding on DEI-related discrimination instructs recipients to “scrutinize neutral criteria for proxy effects.”[4]
DEI-Related Discrimination in the Headlines
DEI-related discrimination has also been in the headlines recently.
In February, the EEOC announced it had filed a subpoena action against Nike in federal court related to Nike’s DEI programs, including the use of race and ethnicity data in compensation and in mentoring, leadership, and career development opportunities.[5]
The EEOC also filed a complaint against a Coca Cola distributor for sex discrimination.[6] The distributor held an employer-sponsored two-day retreat at a casino for only women employees, who were paid their normal wages.[7] Male employees were not invited.[8]
In addition to litigation, EEOC Chair Lucas also sent a letter to leaders of Fortune 500 companies, entitled “Reminder of Title VII Obligations Related to DEI Initiatives.”[9] The letter warned these employers that DEI programs, policies, or practices can result in race and sex discrimination.
In January, the FTC also issued warning letters to 42 law firms with over 50,000 attorneys relating to their use of the Mansfield Certification, a DEI tool used by firms to advance equitable hiring and promotion practices.[10]
Other New Enforcement Priorities
In addition to DEI-related discrimination, the EEOC has also signaled several other new enforcement priorities.
The EEOC is revisiting decisions and guidance on transgender employees. At the end of February, the EEOC held that federal agencies can bar transgender employees from using restroom and other intimate spaces, such as changing rooms, that correspond to their gender identity.[11] This partially overturned a 2015 EEOC decision that had upheld restroom access.[12] The EEOC also voted in January to rescind a memo on harassment that included descriptions of harassment based on gender identity.[13]
The EEOC is also now encouraging claims for “American” discrimination, in which employers prefer workers from a certain country or with a certain visa status over American workers.[14]
Chair Lucas also released a video on X in December encouraging white male employees to submit claims for discrimination based on their race or sex.[15]
Looking Ahead
Employers should keep in mind the EEOC’s updated enforcement priorities, particularly DEI-related discrimination, and monitor workplace policies and DEI programs for compliance. In addition to the EEOC, employers should be sure to always consider state and local employment laws and the priorities of those agencies as well.
