EEOC’s New National Enforcement Plan Signals the Federal Government Continued Move Away from Disparate Impact Enforcement
John Agbonika, Associate
On June 4, 2026, the Equal Employment Opportunity Commission (“EEOC”) issued its National Enforcement Plan (FY2025 – FY2029) (“NEP”)[1] which rescinds the prior FY2024-2028 Strategic Economic Plan (“SEP”)[2]and focuses on intentional discrimination, merit-based decision-making, and “evenhanded” enforcement. When read alongside the Department of Justice’s (“DOJ”) June 9, Opinion Letter[3] challenging the constitutionality of the EEOC’s longstanding disparate-impact enforcement framework under Title VII, it demonstrates that the federal government is moving away from disparate impact enforcement on the basis of unintentional and neutral employer conduct.
Background
The SEP was framed during the Biden administration around fair and inclusive workplaces, racial and economic justice, expanding protections for vulnerable and underserved communities, addressing artificial intelligence (“AI”) and automated hiring tools that intentionally exclude or adversely impact protected groups, and supporting lawful diversity, equity, inclusion, and accessibility (“DEIA”) practices that identified barriers to equal opportunity.[4] Under the SEP, the EEOC resolved to use its tools such as enforcement (including investigations, settlements, and litigation), education and outreach, research, and policy development, to advance the agency’s priorities.[5]
The Significance of the NEP
The NEP retains some of the enforcement tools highlighted in the SEP, including education and outreach and encourages voluntary resolution through mediation and conciliation, litigation, coordination between the EEOC’s headquarters and field offices, and continued attention to vulnerable workers. However, the NEP’s tone signals a move to deemphasize broad disparate-impact liability enforcement, instead prioritizing intentional discrimination and focusing agency resources on matters the EEOC views as having broader enforcement significance.
Although the EEOC acknowledges that Congress amended Title VII in 1991 to address disparate-impact liability, the NEP states that intentional discrimination is inherently more egregious than unintentional disparities caused by neutral policies.[6] Based on that view and consistent with President Donald Trump’s Executive Order 14281 titled “Restoring Equality of Opportunity and Meritocracy,” the EEOC states that it will prioritize disparate treatment (intentional) theories, including pattern-or-practice claims;[7] eliminate the use of disparate-impact theories in investigations “to the maximum degree possible” and will not commence, develop, or continue litigation advancing disparate-impact claims.[8] This new approach closely tracks the DOJ’s June 9, 2026 Opinion Letter discussed in our previous blog.
The NEP also identifies several areas likely to receive increased attention. These include job advertisements that exclude or discourage applicants based on protected characteristics; staffing, fellowship, or similar programs that exclude individuals based on protected characteristics; channeling or segregating employees into certain roles; mass denials of accommodations; systemic harassment; and intentional discrimination in hiring, layoffs, job mobility, benefits, and pay.[9]
Key Takeaways
For employers, it is important to note that disparate-impact liability has not disappeared. Title VII still contains disparate impact provisions, and private plaintiffs may continue to assert these claims. Furthermore, as discussed in our previous blog, disparate impact remains a recognized theory of liability in Colorado and other states, and employers could face liability even for unintentional and neutral actions that have a discriminatory effect. Therefore, while the EEOC is stepping back from disparate liability enforcement in certain respects, Colorado employers should be mindful of their obligations under Colorado’s disparate impact framework and continue to engage in compliance review.
[1] U.S. Equal Emp. Opportunity Comm’n, National Enforcement Plan (FY 2025-FY2029), Directives Transmittal No. 600.001, at 1 (June 4, 2026), https://www.eeoc.gov/sites/default/files/2026-06/NEP_-_signed.pdf
[2] U.S. Equal Emp. Opportunity Comm’n, Strategic Enforcement Plan Fiscal Years 2024 – 2028, (approved Sept. 18, 2023), https://www.eeoc.gov/sites/default/files/2024-03/23-161_EEOC_SEP_030124_508.pdf
[3] See Constitutionality of Disparate-Impact Liability Under Title VII, 50 Op. O.L.C. __, at *1 (June 9, 2026), available at https://www.justice.gov/olc/media/1444871/dl for the full Opinion Letter. For additional information on this opinion and its implication for employees as it relates to disparate impact, please see our blog post here: https://www.rockymountainemployersblog.com/blog/2026/6/18/department-of-justices-opinion-letter-could-signal-major-shift-in-disparate-impact-discrimination-but-states-may-continue-to-enforce-such-laws
[4] Id. at pp. 3-4, 17.
[5] Id. at p. 7.
[6] EEOC National Enforcement Plan, supra note 1, at p. 2
[7] Pattern-or-practice claims require a demonstration of a “pattern of discriminatory decisionmaking” and that “unlawful discrimination has been a regular procedure or policy followed by an employer.” See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106 (10th Cir. 2001)
[8] EEOC National Enforcement Plan, supra note 1, at p. 2; See Exec. Order 14281, Restoring Equality of Opportunity and Meritocracy, 90 Fed. Reg. 17537 (Apr. 28, 2025), https://www.federalregister.gov/documents/2025/04/28/2025-07378/restoring-equality-of-opportunity-and-meritocracy
[9] Id. at p. 4. The EEOC states that such practices “may include, but is not limited to, policies, programs, or practices that preference guest worker visa holders or PERM applicants or those policies, programs, or practices labeled or framed as “diversity, equity, and inclusion” (DEI) or similar euphemisms, often adopted by large corporations, prominent universities, and other elite institutions.” Id.