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Employment lawyers have urged businesses to review their practices, workflows, and records following the release of a new National Enforcement Plan (NEP) by the Equal Employment Opportunity Commission (EEOC).
The NEP, in place for fiscal years 2025 – 2029, replaces a previous plan in place for fiscal years 2024 – 2028.
EEOC Chair Andrea Lucas said the NEP, officially published last week, “reaffirms the agency’s unwavering commitment to merit-based, evenhanded enforcement of our nation’s civil rights laws.”
In an article published by the National Law Review, employment law experts from Jackson Lewis described the plan as a “major shift,” with key changes made to the EEOC’s priorities.
EEOC’s new National Enforcement Plan
According to the EEOC, the NEP helps guide the agency’s activities, including “outreach, public education, technical assistance, enforcement, and litigation.”
For employers, this gives a window into the disputes, investigations, and litigation the agency will likely focus on over the next few years.
Delivering Consistent HR Services for Deskless Workers
The release continued: “It also reaffirms the agency’s three-pronged approach to eliminating discrimination in the workplace: prevention through education and outreach; the voluntary resolution of disputes, including through Alternative Dispute Resolution, pre-determination settlements, and conciliation agreements; and strong and evenhanded enforcement through litigation.”
Among the clear priorities for the agency until fiscal year 2029 is a focus on dealing with “intentional discrimination,” particularly for instances relating to sex, race, and/or other protected characteristics.
“By prioritizing intentional discrimination and underscoring that every worker must be treated as an individual under the law, this plan sharpens the agency’s focus on protecting equal opportunity for all Americans,” Lucas explained. “It strategically directs enforcement resources toward the most serious and consequential unlawful employment practices to better safeguard workers’ civil rights nationwide.”
The priorities are listed in the full plan, but are not ranked, and only represent priorities rather than an exhaustive list of actions.
Guidance for employers
The EEOC’s new plan “identifies certain DEI-related employment practices as enforcement priorities and de-emphasizes disparate impact claims,” experts from Jackson Lewis remarked.
Offering guidance to employers, they advised that businesses can “expect scrutiny of employment practices that consider not only race, sex, national origin or other protected characteristics, but continued agency focus on religious accommodation, PWFA liability, national origin issues and certain workplace issues involving gender identity and sex-based classifications.”
The experts encouraged employers to “review the records and workflows most likely to matter in an EEOC investigation, including hiring, promotion, compensation, layoffs, accommodations, staffing, visa-related practices, DEI-related programs, vendor instructions, and charge-response practices.”
Employers must also “continue to ensure that decisions are supported by lawful criteria, contemporaneous records, and consistent implementation,” they emphasised.
Businesses were further warned that the changes do not remove discrimination risk for employers, and that instead, closer attention will be paid to decision records.
DEI-related employment practices
Diversity, equity, and inclusion initiatives are specifically named by the EEOC as an area of focus, stating they may be an example of the “broad-based employment policies, programs, or practices that result in intentional discrimination against employees or applicants for employment.”
Diversity statements, diversity hiring panels, and race- or sex-based quotas are all named among the list of policies, programs, or practices that will receive greater attention.
The same applies to “executive and other employee compensation or bonuses tied to employee race- or sex-based demographic goals or other diversity goals,” among others, the NEP reads.
“For employers, the practical risk often lies in how programs are designed, described, and administered,” Jackson Lewis’ experts wrote. “Neutral outreach, training, mentoring, retention, and equal-access efforts should be kept distinct from practices that reserve opportunities, apply preferences, channel or steer candidates or employees based on protected characteristics, or use protected characteristics as selection criteria.”
Further points of note
The new NEP also specifies plans to “eliminate the use of disparate impact liability theories in investigations to the maximum degree possible” – and notes the agency “will not commence, develop, or continue litigation advancing disparate impact claims.”
It further identifies other priority areas and specific, unresolved cases where it may seek to develop the law.
These cases span issues including DEI practices, religious accommodations, and the Pregnant Workers Fairness Act.
