EEOC Issues New National Enforcement Plan for FY 2025-FY2029

Quick Hits

• The EEOC approved a new National Enforcement Plan that rescinds and replaces the Biden-era Strategic Enforcement Plan (FY2024-2028).
• The plan represents a formal reorientation of the EEOC’s enforcement strategy and priorities, including the near elimination of disparate impact enforcement and the explicit targeting of DEI programs as potential intentional discrimination.
• The rebranding from “Strategic” to “National” Enforcement Plan reflects a centralized nationwide model with authority to reassign matters across districts and withdraw all local enforcement plans.
• The EEOC reaffirmed its status as an executive branch agency aligned with Administration policy objectives and executive orders.

The NEP, issued under the authority of Chair Andrea R. Lucas, sets out the EEOC’s substantive enforcement priorities and guiding principles for a five-year period, Fiscal Year (FY) 2025 – FY2029, directing the agency’s outreach, education, investigations, conciliation, and litigation. The plan took effect immediately upon approval.

The new NEP establishes a three-pronged approach: (1) prevention through education and outreach, (2) voluntary dispute resolution (including ADR, pre-determination settlements, and conciliation), and (3) strong enforcement via litigation. The NEP prioritizes high-impact litigation that has the potential to advance the Administration’s policy objectives and develop antidiscrimination law.

Below is a summary of what the NEP does and how it changes the agency’s enforcement approach.

Key Changes Outlined in the NEP

Prioritization of disparate treatment over disparate impact 

In the NEP, the EEOC acknowledges that Title VII of the Civil Rights Act was amended in 1991 to add disparate impact liability, but the EEOC concluded that intentional discrimination (disparate treatment) is “inherently more egregious” than unintentional disparities arising from neutral policies (disparate impact). The NEP states that the EEOC will thus prioritize disparate treatment theories of liability, including pattern or practice liability, pursuant to Executive Order 14281, “Restoring Equality of Opportunity and Meritocracy.” Specifically, the EEOC will eliminate the use of disparate impact theories in investigations “to the maximum degree possible” and will not commence, develop, or continue to pursue litigation advancing disparate impact claims.

Alignment with administration priorities. 

The NEP reaffirms the EEOC’s status as an executive branch agency, a characterization the NEP claims has been recognized by EEOC leadership and the U.S. Department of Justice’s Office of Legal Counsel since the 1970s. The explicit commitment to using enforcement discretion to “advance the Administration’s policy objectives and comply with relevant Executive Orders” represents a practical departure from the agency’s historically independent posture.

‘Nationwide Enforcement Model’

The NEP states that the EEOC will use its “constrained resources” to “maximize the impact of the agency’s work” by acting as a “national law enforcement agency.” The NEP replaces the FY2024–FY2028 “Strategic Enforcement Plan.” The shift from “Strategic” to “National” Enforcement Plan is significant in that it reflects the NEP’s centralized model, under which headquarters leadership can reassign matters from one district to another, deploy headquarters personnel to bolster field staffing on priority matters and assign priority cases to multiple districts simultaneously. The NEP also withdraws all prior District Complement Plans and local enforcement priorities, requiring field offices to operate under a single set of national priorities. The NEP further directs collaboration with other federal agencies, Fair Employment Practices Agencies (FEPAs), state attorneys general, and other state and local entities.

Targeted resource deployment for ‘strategic impact’

The NEP states that given the agency’s “budget and staffing constraints” and that it receives on average over 80,000 charges and 250,000 charge inquiries annually, the EEOC will be “strategic about the matters it prioritizes” and will focus resources on specific substantive priority areas rather than treating every charge equally.

Substantive Priority Areas

Matters presenting ‘a substantial likelihood of broader enforcement significance’

Such matters involve allegations of repeated or overt discrimination, including facially discriminatory policies such as race- or national-origin-based job advertisements, staffing agencies that exclude individuals based on protected characteristics, channeling or segregating individuals into jobs based on protected characteristics, mass denials of accommodations, and systemic harassment. 

The NEP references “Commissioner charges” as a mechanism for initiating priority investigations. Because individual Commissioners can file charges without a private complainant, the EEOC can self-initiate investigations into DEI programs or other priority areas without waiting for a worker to file a complaint. 

Programs and practices labeled as DEI

The NEP explicitly identifies as potential targets those policies, programs, or practices that preference guest worker visa holders or PERM applicants, as well as those “labeled or framed” as “diversity, equity, and inclusion” (DEI) or “similar euphemisms.” The use of the word “euphemisms” signals how the agency is likely to frame these programs in investigations and litigation. The NEP characterizes such practices as forms of intentional discrimination. Specific examples include race- or sex-based quotas (even those labeled “aspirational goals”), diverse-slate or hiring-panel policies, diversity statements, candidate evaluation rubrics that consider protected characteristics, employee race or sex data shared with managers or the public, and executive compensation or bonuses tied to demographic goals. Also targeted is limiting access to on-the-job training, internships, fellowships, mentorship, sponsorship, pre-apprenticeship or apprenticeship programs, employer-sponsored groups or events, bonuses, fringe benefits, and other terms of employment on the basis of protected characteristics. 

Cases with ‘the potential of promoting the development of law’

The NEP prioritizes cases that involve the application or scope of recent precedents by the Supreme Court of the United States or that present “unresolved issues of statutory interpretation.” These can be grouped thematically:

• DEI and Affirmative Action—“analysis of voluntary affirmative action programs pursuant to” United Steelworkers v. Weber and Johnson v. Transportation Agency following Ames v. Ohio Dep’t of Youth Services, Muldrow v. St. Louis,  Students for Fair Admissions, and other recent Supreme Court precedent. The framing signals the EEOC views the legal foundation of voluntary affirmative action programs as weakened by recent case law and will pursue cases to test or narrow the permissible scope of such programs;
• DEI Practices and Programs—“analysis under Title VII of certain DEI practices, programs, and policies following” Ames, Muldrow, and Students for Fair Admissions:  The inclusion of Ames is significant because that decision addressed the standing of majority-group plaintiffs to bring Title VII discrimination claims.  Together with the NEP’s “evenhanded enforcement” principle, this indicates the EEOC’s intent to bring enforcement actions on behalf of majority group workers., ;
• Discrimination thresholds—the “application of the ‘some harm’ standard adopted in” Muldrow. While the NEP seeks to narrow Bostock v. Clayton County, the Muldrow standard lowers the threshold for what constitutes an actionable adverse employment action. If the EEOC successfully promotes that standard, it could be invoked by the very workers (including transgender employees challenging exclusion from single-sex spaces) that the Bostock-narrowing effort aims to constrain;
• Religious Liberty—“employers’ obligation under Title VII to reasonably accommodate religious practices” under Groff v. DeJoy; and
• Sex and Gender—“[c]arifying the scope” of Bostock. The NEP identifies four specific areas for clarification: employees’ right to single-sex intimate spaces, employers’ right to provide single-sex spaces, employees’ and employers’ right to express the binary nature of sex, and employees’ right to religious accommodations for sincerely held religious beliefs. The NEP also identifies the scope of liability under the Pregnant Workers Fairness Act (PWFA) as a priority for legal development. 

Vulnerable workers and integrity of enforcement process

The NEP prioritizes the protection of vulnerable workers, including teenage workers, persons with limited literacy, low-wage workers, survivors of sexual assault, and workers with developmental or intellectual disabilities. Further, the NEP focuses on cases “involving the integrity or effectiveness of the Commission’s enforcement process,” including retaliation against participants in EEOC proceedings, challenges to EEOC’s policy documents, subpoena enforcement, and recordkeeping violations.

For amicus purposes, the NEP identifies a specific priority for cases where the agency can “clarify the constitutional and statutory limitations regarding liability under the statutes it enforces in matters involving religious organizations and religious employers.” This indicates the EEOC will file amicus briefs to expand the scope of religious employer exemptions from antidiscrimination liability

Chair Priorities

In the NEP, Chair Lucas identified four ongoing priorities meant to “complement” the NEP’s substantive categories:

• “Remedying DEI-related race and sex discrimination;”
• “Protecting American workers from anti-American national origin discrimination;”
• “Defending women’s rights to single-sex spaces at work and workers’ rights to express the binary nature of sex;”
• “Protecting workers’ religious liberty rights to receive religious accommodations and be free from religious discrimination, harassment, and related retaliation.”

Additional Guiding Principles

Three additional principles in the NEP are relevant to employers:

• Evenhanded enforcement. The NEP instructs all EEOC components to “ensure evenhanded enforcement of the civil rights laws,” reminding staff that “as public servants, EEOC staff are working on behalf of all American workers protected by these laws.” In context, this indicates the agency will pursue claims on behalf of majority-group workers (e.g., white employees, male employees) with the same vigor as claims by minority-group workers.
• Individualized assessment. The NEP requires that prioritization decisions be based on “both the issue raised and an assessment that the strength of the investigation or case supports the decision to prioritize the matter.” The EEOC has thus committed, at least on paper, to not pursuing weak cases simply because they fall within a priority category.
• Broad enforcement caveat. The NEP states that the enumerated priority categories “do not limit the agency from prioritizing any particular investigation or cases” and are “not listed in a particular order of importance.” Employers should not assume they are insulated from enforcement scrutiny simply because their conduct falls outside the listed priorities.

Next Steps

While the NEP largely reiterates the EEOC’s enforcement priorities under the Trump administration and Chair Lucas’s leadership, the NEP represents a formal reorientation of EEOC’s enforcement strategy and priorities.

Employers may anticipate continued heightened scrutiny of DEI-related policies, diversity hiring targets, voluntary affirmative action programs and any practices that use race or sex as factors in employment decisions, while also preparing for strengthened enforcement of religious accommodation obligations and protections for workers in single-sex spaces. Although labeled as covering FY 2025–FY 2029, the NEP will remain in effect until superseded, modified, or withdrawn by vote of a majority of members of the Commission.  As a result, employers may wish to evaluate and potentially revise or refresh policies and practices that relate to the priorities outlined in the NEP, revisit and enhance training of supervisors and managers regarding related workplace policies and legal obligations, and monitor internal complaints to ensure that timely investigations are conducted so that appropriate corrective or remedial measures are implemented when warranted.  

Ogletree Deakins Diversity, Equity, and Inclusion Practice Group and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, and Workforce Analytics and Compliance blogs as additional information becomes available.

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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