Defensible Decisions: EEOC Enforcement in 2026—New Rules, New Risks for Employers

Announcer: Welcome to the Ogletree Deakins podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast, so we can get your feedback and improve our programs. Please enjoy the podcast.

Scott Kelly: Hi, everyone, thanks for joining today. This is an episode of Defensible Decisions. I’m Scott Kelly, a shareholder in Ogletree’s Birmingham and Washington, D.C. offices, and I’m joined today by Nonnie Shivers, a colleague of mine and a shareholder in our Phoenix, Arizona, office. Hi, Nonnie. Welcome to the podcast.

Nonnie Shivers: Thanks, Scott. Glad to be here today and talk about this exciting topic.

Scott Kelly: Yeah. So, we’ve seen a lot of actions from the Equal Employment Opportunity Commission, particularly in the first few weeks of January of 2026. So, we wanted to talk a little bit today about what some people might not be paying that much attention to, which is some procedural issues that the Commission just recently voted on on January 21st, 2026. The vote was two-to-one for them to reclaim authority over most enforcement litigation from its office of general counsel. It seems that that delegation had been given to the general counsel’s office almost a few decades ago, and so it’s a pretty interesting development but might have, I don’t know, gone a little bit under the radar. Nonnie, what do you think of this move by the Republican commissioners that had the quorum? The vote was two-to-one, with Chair Lucas and Commissioner Panuccio voting in favor, and then the Democratic commissioner, Kalpana Kotagal, voting against this.

Nonnie Shivers: I mean, what the resolution that was voted upon and passed by that two-to-one vote along party lines is is it permits the members to commence or intervene in almost all litigation. But what Chair Lucas essentially said in her accompanying statement was that it undid acts of delegation that had spanned many decades, and so it allowed the Commission to directly execute its authority and, according to Chair Lucas, will give additional transparency and accountability on the voting process.

So, I think the big takeaway here, Scott—not to jump ahead too far, and we’ll circle back to this—is the Commission may well use this as a way to fast-track a larger number of lawsuits that target subjects that are among the top priorities for the administration. And that seems to me to be a very high potential takeaway, that we’ll see more or different, not only out of the regional offices, but more out of the actual Commission.

Scott Kelly: Yeah, I would totally agree with you on that. I think you’re right. Let’s synthesize for the audience what the big takeaway from this particular vote, what it’s really going to result in, and that’s that the Commission has to vote within seven business days on the following types of matters: systemic pattern of practice, large group, if there’s unsettled law, a particular area that’s unsettled law, or where there’s going to be a lot of resources that are going to be needed to pursue the matter. They have five days—these are business days—to vote on other litigation recommendations. The general counsel, though, is going to retain some authority, limited authority, to enforce consent decrees, recordkeeping and reporting duties, and can still refer public sector cases to the Department of Justice without a Commission vote. And we’ll have some leeway if we ever encounter a Commission, which I’m sure we will, that’ll lack a quorum. That happens with changes of administrations and other political events that occur.
So with that, I think, Nonnie, you were really trying to get to the heart of the matter, which is sounds like you think that this is going to be a way that the Republican commissioners can really put forth some of the areas from this administration priority-wise that they’ve been trying to do since they took office at the beginning of 2025. What areas do you think we’re going to see cases?

Nonnie Shivers: Yeah. I think with this curbing of redelegation, as it’s been put, that we’ll see very clear enforcement activity focused on the elucidated priorities. So first, we just podcasted. You can also listen to that titillating podcast on Chair Lucas’s call or solicitation for white male charging parties who have been discriminated on this basis. So, one, I think we’re going to see that majority characteristic type of claim, which is already the law, right? Race protects race, not minority. So, we’re going to see those majority characteristic cases, potentially. We may see that under the guise of diversity, equity and inclusion. Given the focus on training programs as unlawful DEI, anything that looks, sounds, or smells like a preference and anything that looks, sounds, or smells like a quota, I think that we could well see enforcement start to flow. Whereas, what we’ve seen before, Scott, has been commissioners’ charges, charge work, investigatory demand letters, the CIDs from the DOJ, we’ve seen that, I think we could move into a litigation posture on DEI. That’s what we at least expect, based on what we’re seeing.

I think we could also see litigation based on the other key priority, which is national origin discrimination. Of course, right when Chair Lucas came in at the beginning of the Trump administration to that acting role, now appointed to it, there was a big settlement on national origin discrimination through a consent decree that obviously predated the administration taking office again. But that sets the stage that we’re going to see this, and it’s been lauded by the chair and others as part of that ongoing push to make sure American workers are prioritized, retrained. And I think that we will clearly see not the pursuit of unlawful workers, workers who are not authorized to be here, which has been alluded to pretty specifically, but we’ll also see things like reductions in force, offshoring, business decisions that will start to garner attention.
As a final issue, we’ve seen the retraction—rescission, accurately—of the voted-upon sex harassment guidance that had a great deal of information for employers on LGBTQ rights in the workplace, pronoun usage, bathroom usage, things like that. It’s been rescinded in full, and I think that we could see not just guidance in the future on what employers can or should be doing in that space to fill the gap to answer questions, although the law remains the law. But I think we could also, Scott, see litigation that focuses on religion, that focuses on the intersectionality there with LGBTQ rights and prioritizing that, especially based on the federal-sector guidance issue that could well be issued for the private sector. Those are my purely speculative, wearing my Carnac the Magnificent hat, but that’s where I expect we could see that dovetail directly with what the Trump administration has prioritized. And of course, recall, Chair Lucas has said the EEOC is now an executive agency, contrary to her past testimony to Congress.

Scott Kelly: Yeah. And I think another related area, and you’ve talked about this a bit particularly with some of this, what I would say is unsettled law, where, borrowing your favorite phrase when we’re talking with clients, we’re really telling them they need to lean into the law, because it might be that if you have a particular situation on one side of the country, the answer might be a little bit different on how to handle it compared to a different part of the country, and that’s why leaning into the law is so important here.

Here I think that, given where we know the administration is on some of these issues, I think that you’re going to probably see the Commission selecting some cases to test or reshape legal boundaries, and I think that employers are going to be the ones that are going to be rushed into that litigation. That’s going to mean that they’re probably not going to be able to have their conventional ways to resolve those cases might be off the table, which you’ve talked about. And I think that just, obviously, to state what’s there, that means you’re going to have a lot of reputational exposure. There’s a lot of unpredictability in these types of cases if you’re facing one or dealing with them. And really, litigation costs are going to be skyrocketing, in my opinion. Do you disagree with any of that?

Nonnie Shivers: I think that’s all very sage wisdom. I do think that, based on Chair Lucas’ statements in the past, in recent past, that the administration is going to focus on change agents. So, if a company is a subject, it will have repercussions throughout industry and sectors. We obviously know that there are other priorities like antisemitism. We know there’s great opposition to some of the requests that have been fomented on especially colleges and universities, so we’re going to see some of that continue to develop.

And the DEI space got a good example of that, is nearly all of the case law that has arisen related to DEI trainings, which we could all just call trainings at the end of the day, almost all of that case law has gone the way of the employer, to say every company does this, they have a legitimate interest in doing so, and things like training on bias are not unlawful. And some of those trainings that really tested the boundaries, but we should expect to see those continue. Another good example of what I fully expect we’ll see, our bathroom pronoun litigation, where individuals claim that their religious rights are not being accommodated, or their religious beliefs.

I think you’re 100% right. Some of the executive orders that have been challenged—there have been times where the administration has not had the resources or the ability to fully defend those or they’re not moving along. So, some of this could, like you said, lead to wins in their column through different mechanisms. So, employers should be prepared for the whole panoply of options at the EEOC’s disposal, of course, before and during litigation.

Scott Kelly: Absolutely. I think too, we’re going to see, now that the Commission has the quorum, they’ve made these voting changes, I really think they’re going to fast-track a lot of pattern of practice or systemic discrimination cases. These are things that I think really we did not see in 2025. There was certainly on the policy side, you had the president’s executive orders, you had the technical assistance that Chair Lucas, acting chair at the time, released on DEI. We’ve talked about some of the solicitation for white men to come forward and bring their charges of discrimination, but I think that you’re going to start to see these things actually materialize.
And I think if I’m an employer, one of the better practices—and I’m going to sound like a broken record here—is really figuring out how you prepare for that. You don’t want to be the test case. You certainly want to try to avoid being the company that gets hit with one of these charges that turns into a systemic or a pattern of practice investigation. But I think you can do some things besides just really running your luck out on hoping not to be chosen to get the rose, so to speak here. But I think doing risk assessments to understand if you have any practices, and I’m looking at selection practices, hiring both externally and internally, pay practices, promotional opportunities, looking at your accommodations, looking at your terminations. I think doing an analysis of those, directed by legal counsel under privilege, for the purpose of determining whether you have legal risks, so you can see if there are some root causes or barriers to EEO, would be really prudent ways to invest in preparing for what I think could be some nasty investigations coming.

And I think if you take some comments that—she’s not the general counsel—but Catherine Eschbach, who is in a new role in the general counsel’s office at EEOC . . . we’re still waiting for the general counsel that President Trump nominated to make his way through the process and get a confirmation hearing . . . but Catherine Eschbach at a SHRM conference in the fall last year really did speak on a panel and talk about the importance of doing these types of proactive analyses to ensure that you don’t have legal risk, and that that is lawful to do, so I really want to double down on the importance of considering whether or not that would be right for a particular organization or not. Do you have any other suggestions that you think employers might need to be mindful of as they’re trying to figure out how to prepare for this scrutiny from the EEOC in 2026?

Nonnie Shivers: Yeah, just two additional thoughts. One, on the data piece, Scott, you couldn’t be more right, which is even if the EEO-1 meets its demise, which has been directly alluded to in comments by various EEOC officials, not this year, but potentially coming in short order, it doesn’t mean we can’t get and study our data. Your data is your data. And so, we’ve heard a lot of our spend has gone up, we didn’t expect the DEI work to reclaim as much of our budget. Failing to look at your data and study it is really a risk that I think a lot of organizations don’t want to take. We do also want to be mindful that if you’re global, you’re going to have differing obligations, and so we’re going to need to really carefully think through how to do that and what we’re going to use it for. And I think that the world is your oyster as long as it’s lawful, and there are very clear parameters as to how it can be.

The other thing that I’d really encourage employers to think about is the fear of litigation does not drive our decisions at the end of the day, but it does inform our risk tolerance. And so, I think it’s a good period, a year into the new administration, seeing what priorities are shaking out and understanding what’s to come, based on podcasts like this, is what are all the things that inform your risk tolerance. And so really reevaluating what programs do we have that are critical to our business, to our delivery, our meeting of our KPIs, and what are we willing to double down on? What are we willing to defend and are we confident that it is lawful, and really do the hard work?
And so, if things are material to your business, you have to make that decision, but considering the optics, the customers, the administrators, the enforcers. It takes all of those points to figure out your risk tolerance. And I think a year in, companies need to take a pause to reassess, “Do we still sit in the same place?” Maybe that’s through benchmarking, maybe it’s through becoming more comfortable with ambiguity, but I think that those could all assist, Scott.

Scott Kelly: All great points and good things to consider. I think we need to keep watching also to see if there’s any kind of public articulation of where the different commissioners, particularly Chair Lucas is a frequent speaker and has made her rounds on a lot of different conferences, and really delivers some really salient points that employers need to be listening to. So, I think another way to follow her would be on social media, LinkedIn and the like. She’s pretty prolific at putting content up there, and I think that’s where we are with this administration, is watching what they’re saying, because I think that we’re going to see a little bit of a different approach than we saw last year, which there was a lot of talk about things, but they didn’t have the quorum. They didn’t have some of these rules that they now have somewhat changed, or these procedures that they’ve changed. So, I think you’re going to see their words and their actions aligning with a little bit more priority. The temporal difference between a word and an action isn’t going to be quite as long as we might have been accustomed to last year. So, definitely important to stay on top of things. We are trying to keep people updated through our different articles and podcasts like this. So, for our audience, I’d say please just stay tuned and keep in touch with us. Nonnie, do you have any parting thoughts before we conclude?

Nonnie Shivers: The only thing I’ll add, Scott, is those socials are important, but also some of these changes feel esoteric or like they won’t have direct impact on employers. Tracking the evolution of the EEOC as a primary enforcement vehicle is really critical, but also staying mindful that state enforcement agencies are going to differ widely. And so, keeping track of all applicable enforcement authorities and their stances will benefit us in informing that risk tolerance and deciding how to use our data.

Scott Kelly: All right. Thank you, Nonnie. And for all the listeners out there, thanks for joining this episode of Defensible Decisions. We will keep listening and we’ll be reporting soon on some other new developments. Thank you.

Announcer: Thank you for joining us on the Ogletree Deakins podcast. You can subscribe to our podcast on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only and is not to be construed as legal advice.