EEOC Enforcement Recharged: What In‑House Counsel Can Do Now

Quick Hits

• With the EEOC’s quorum restored, employers can expect more high-profile investigations, broad data requests, and pattern-or-practice litigation targeting hiring, promotion, compensation, DEI programming, and accommodations.
• Employers may want to consider conducting adverse impact and pay studies to identify and remove barriers to equal employment opportunity.
• Employment decisions that are made based on objective job-related criteria buttressed by ample documentation will likely be strongest and most defensible; it therefore makes sense to invest in sound, well-calibrated equal employment opportunity training on these issues.

Recent developments at the EEOC aligned with the administration’s policy priorities suggest an acceleration of cases targeting diversity, equity, and inclusion (DEI) programs focused on race and sex, with a renewed prioritization of religious rights in the workplace. While commissioner charges (including leaked charges) abounded while the EEOC lacked a quorum and could not officially act, employers can anticipate an uptick in high-profile investigations, public prelitigation demands with broad data requests, and systemic lawsuits.

To mitigate risk exposure in the targeted areas of hiring, promotion, pay, DEI programming, and accommodations, employers may wish to leverage and strengthen privileged analytics to proactively diagnose and remove barriers to equal employment opportunity.

Regaining Quorum: Structural Consequences for Enforcement

The EEOC’s quorum confers institutional authority to approve and pursue large-scale litigation. As newly confirmed Chair Lucas explained, achieving a practical and technical quorum “reempowers” the agency to bring systemic and pattern-or-practice cases—matters that often require the EEOC’s authorization and carry broader policy and risk implications than individual charges and actions. Prior to the quorum being achieved, the agency’s litigation was largely constrained to investigations, including commissioner charges and smaller-scale matters. With the quorum restored, the Commission can revisit guidance (as it has clearly stated it will do), prioritize litigation priorities aligned with the administration’s elucidated policy priorities, and coordinate multiregional enforcement in a manner that shapes nationwide practices.

In public remarks at the Federalist Society’s 2025 National Lawyers Convention, Chair Lucas linked the restored quorum to the capacity to pursue “high-profile cases that effectuate the Trump administration’s civil rights agenda.” That statement, alongside the budget justification’s emphasis on systemic enforcement capacity, situates the EEOC’s litigation posture within a broader ideological program.

Commissioner Kotagal underscored the practical effect during a recent panel at the 2025 ABA Labor and Employment Law Conference: the agency can again file “large-scale systemic lawsuits or cases that are potentially controversial, or that touch on a developing area of law,” and she predicted “a lot of action in this space.” Her comments signal that the docket will expand in volume and ambition, reaching into unsettled legal questions where circuit splits, statutory interpretation, and regulatory revisions may be in play.

The practical outgrowth is predictable. Employers should expect matters challenging employer DEI programs under any name, including race- or sex-conscious recruiting or promotion pipelines, diversity-linked incentives, resource groups tied to protected classes where access is not appropriately open, selection practices that disadvantage protected groups, and harassment/accommodation policies. Religious discrimination claims may test how employers balance accommodation requests with operational needs, and how far obligations extend when beliefs conflict with coworkers’ rights or public-facing roles. The EEOC is likely to continue to pursue discrimination and harassment claims as well.

Budget and Capacity: The Enforcement Engine

The EEOC’s congressional budget justification from May 2025 emphasized systemic and pattern-or-practice investigations and litigation as central to the agency’s enforcement strategy and impact. Those documents typically frame such cases as cost-effective vehicles for broad relief and normative compliance, emphasizing data-driven identification of employer-wide disparities. With continuing resolution funding in place through at least January 2026, the agency retains the resources to initiate complex suits and expand investigatory reach, including intensified use of commissioner charges, targeted investigations, and coordinated litigation with regional offices.

The budget narrative matters. It signals an investment in staffing and analytics at prior-year funding levels, renewed appetite for robust systemic investigations, discovery-heavy litigation, and the expectation of precedent-setting outcomes. Employers can reasonably interpret this as a call to shore up documentation, including data collection, ensuring the use of job-related requirements, validation studies, and governance frameworks before an investigation begins, not after.

Risk Management and Governance: A Practical Playbook

The most effective response blends legal readiness with data-driven oversight. Employers may want to consolidate policy frameworks around harassment, accommodations, religious practices, and DEI, ensuring they are consistent, precise, and operationally embedded, and audit decision-making processes for hiring, promotion, compensation, performance, discipline, and terminations, with particular attention to criteria that are subjective. Employers seeking to better effectuate compliance may wish to consider the following points:

Strengthen investigation protocols. Ensure complaint intake is accessible and nonretaliatory; establish timelines and accountability; and maintain privileged analyses of systemic conditions that may foster hostile environments. Training that is substantive, scenario-based, and tailored to supervisory responsibilities rather than generic modules will likely be more effective.

Reassess DEI architectures. Consider replacing any preference-based components with inclusive, nondiscriminatory strategies: robust outreach, barrier removal, equal opportunity mentoring programs open to all, and measurable inclusion goals grounded in lawful, nonpreferential tactics. Resource groups should ideally be inclusive by design, with careful attention given to eligibility and programming, while performance and compensation systems should avoid diversity-linked quotas or incentives that could be construed as pressure to discriminate.

Align accommodation practices, if and when new guidance is issued. Until that happens, employers will be well served by clear interactive processes, documented individualized assessments, and consistent implementation that is tracked for timeliness. For religious accommodation issues, neutral frameworks that operationalize reasonableness and hardship analysis, that are supported by privileged analytics, and that have preempted conflicts through scheduling flexibility, role adjustments, or alternative assignments where feasible, are most effective.

Privileged Analytics: Seeing and Solving Under Counsel’s Umbrella

Privileged analytics are central to proactive compliance in an era of systemic enforcement. Under the direction of legal counsel, employers should consider conducting attorney-client privileged statistical reviews of hiring, promotion, compensation, performance, and discipline outcomes, including adverse-impact analyses and pay studies to ensure fairness. Where disparities are identified, employers may want to coordinate with counsel to design and implement remedial steps to remove barriers to equal employment opportunity that are legally defensible, document rationale and outcomes, and assess whether adjustments materially reduce risk without introducing new exposure.

Conclusion

The EEOC’s restored quorum heralds a new phase of systemic enforcement aligned with publicly articulated priorities of the Trump administration that are likely to test employer practices with regard to harassment prevention, accommodations, religious rights in the workplace, DEI programming, and addressing gender discrimination. Employers that invest now in privileged analytics and ensure that all decisions are merit-based and supported by documentation will be better positioned to withstand investigations, shape settlements, and, where necessary, prevail in litigation. The window before the EEOC’s docket fully matures is the time to act: diagnose, remediate, and document.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, Leaves of Absence/Reasonable Accommodation, and Workforce Analytics and Compliance practice groups will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Reporting, Governmental Affairs, Leaves of Absence, and Workforce Analytics and Compliance blogs.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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