Legislative lowdown: EEOC adopts new national enforcement plan

The Equal Employment Opportunity Commission (EEOC) recently approved a new National Enforcement Plan, rescinding and replacing a previous version that was adopted by President Joe Biden’s administration.

The document identifies priorities “to guide all aspects of the EEOC’s work to prevent and remedy unlawful employment discrimination.” Among them are certain employment practices related to DEI, as well as a shift away from using disparate impact theories in enforcement matters.

What the EEOC is prioritizing. The agency said it will scrutinize policies or programs labeled as DEI, which it alleges can lead to “intentional discrimination” in areas such as hiring, layoffs, fringe benefits, or pay. Examples of practices the EEOC said it may look into under this plan include:

• The use of “race- or sex-based quotas” in employment actions such as interviewing, hiring, layoffs, or promotions
• Limiting access to opportunities such as on-the-job training, internships, mentorship, employer-sponsored groups or events, or fringe benefits
• Diverse slate policies
• Diverse hiring panel policies
• Requiring candidates to submit diversity statements
• Tying compensation to “employee race- or sex-based demographic goals or other diversity goals”
• Sharing employee race or sex data with non-HR staff or legal representatives

Additionally, the EEOC signaled its intent to prioritize cases involving programs that seek to hire foreign-born workers on guest visas or permanent labor certifications.

Moving away from disparate impact. The national enforcement plan also addresses disparate impact liability, which refers to policies or actions that can have a discriminatory effect, even if seemingly neutral.

The EEOC will no longer use disparate impact liability theories in its investigations, nor pursue litigation involving disparate impact claims, the agency said. Instead, it suggested it will focus on “intentional discrimination” by employers.

This follows an executive order issued last April that directed both the EEOC and Department of Justice (DOJ) to stop enforcing laws and regulations involving disparate impact theory. The DOJ issued an opinion on June 9 that found the EEOC’s disparate impact guidelines under Title VII of the Civil Rights Act of 1964 were unconstitutional. Those guidelines date back to 1978.

Just because the federal government is no longer pursuing disparate impact cases doesn’t mean employers will avoid such cases entirely, as private lawyers can still take them on, HR Brew reported in April

More of the same. The EEOC’s new National Enforcement Plan shouldn’t come as a surprise to HR professionals who have been closely following the agency’s activity since President Donald Trump took office last year. More than half of Fortune 100 companies had rebranded or eliminated DEI messaging on their websites as of January, following the administration’s DEI crackdown, an HR Brew analysis found.

The agency did identify several Supreme Court cases where it will seek clarification or challenge the law, so it’s worth keeping an eye on those. One notable case is Bostock v. Clayton County, a 2020 ruling that found discrimination against LGBTQ+ individuals is prohibited under Title VII.