E-Alerts

The EEOC's 2026 Agenda: DEI Programs, Reverse Discrimination, And Employer Risks

Introduction

The first year of the second Trump Administration brought significant shifts in policy direction and litigation priorities at the Equal Employment Opportunity Commission (“EEOC”). Throughout 2025, the agency reversed several existing policies and recalibrated its enforcement agenda.

Now, in the Administration’s second year, the EEOC has intensified its focus on what it deems “unlawful diversity, equity, and inclusion (DEI) motivated race and sex discrimination.” In parallel, the EEOC has emphasized the applicability of Title VII’s protections to majority-group employees, signaling a meaningful shift in enforcement strategy that employers should closely monitor.

Rescission Of 2024 Harassment Guidance

This year commenced with the EEOC issuing radical changes to its prior guidance. On January 22, 2026, the EEOC rescinded its 2024 Enforcement Guidance on Harassment in the Workplace (“Guidance”), which had specifically defined for employers what constituted harassment under federal law based on protected characteristics such as age, race, sex, religion and disability. Among other things, the Guidance indicated that failing to provide bathroom access consistent with an individual’s gender identity or intentionally using incorrect names or pronouns could constitute unlawful harassment.

The EEOC’s rescission followed a 2025 federal district court decision that vacated portions of the Guidance. Texas v. EEOC, 785 F. Supp.3d 170 (N.D. Tex. 2025). While the EEOC Chairwoman claimed that “[r]escinding this guidance does not give employers license to engage in unlawful harassment,” this move, in conjunction with regulations and guidance issued by the agency during 2025, suggests that the EEOC is departing from its prior enforcement strategy of targeting disparate-impact and gender-identity matters.

Importantly, regardless of the EEOC’s current promulgations, federal employment laws against discrimination, harassment, and retaliation, and Supreme Court precedents interpreting those laws, continue to govern employer obligations, and employers should ensure their workplace policies remain compliant.

Heightened Scrutiny Of DEI Initiatives

Now that the EEOC has a restored quorum, the agency is expected to hasten its efforts to align its policy and enforcement guidance to reflect the current Administration’s priorities.

Significantly, as the EEOC Chairwoman has declared, the agency’s main focus and goal will be to “root out unlawful DEI-motivated race and sex discrimination.” Consistent with this objective, the EEOC recently altered its internal process for intervening in and initiating litigation. The EEOC’s General Counsel and field office lawyers have been stripped of this ability, and the power to render such decisions now rests with the Commissioners. This new process centralizes the agency’s decision-making and allows the Commissioners to ensure that the EEOC’s litigation and enforcement strategy remains sharply focused on challenging employer DEI programs deemed to violate federal discrimination laws.

The agency’s new focus was underscored in a February 26, 2026 letter issued to Fortune 500 corporate leaders reminding them of their obligations under Title VII and the EEOC’s newly regained quorum. Thus, the EEOC appears positioned to continue its enforcement and litigation tactics to attack DEI programs utilizing existing anti-discrimination statutes and case precedents.

The anti-DEI agenda articulated by the EEOC in 2025 has quickly evolved into concrete action in 2026. In February, the EEOC filed suit against Coca-Cola in a New Hampshire federal court, alleging that the company’s sponsorship of a women-only networking retreat at a Connecticut casino unlawfully excluded male employees in violation of Title VII. In a recently filed motion to dismiss, Coca-Cola has pushed back against the agency’s claims of discrimination, relying upon prior Supreme Court precedent and presidential executive orders which previously sanctioned and encouraged employers’ voluntary efforts to address imbalances in their workforces.

Also in February of this year, reportedly based solely on Nike’s DEI commitments as stated on its website and in regulatory filings, the EEOC sought to enforce a subpoena in support of its investigation of Nike’s purported “systemic discrimination against white and male applicants and employees.”

On March 16, 2026, the EEOC’s new crusade against DEI programs achieved results when Planned Parenthood of Illinois agreed to pay a $500,000 settlement to resolve allegations that it required employees to attend race-segregated “affinity caucuses.” This EEOC settlement marks the first involving DEI-related practices for the Trump Administration.

Focus On Protecting Majority-Group Employee Rights

Under the current EEOC’s policy changes and the Administration’s focus on protecting the rights of majority-group employees, employers may face increased exposure to discrimination claims by such employees, as well as heightened regulatory scrutiny of diversity-related policies and programs. The EEOC Chairwoman reinforced this direction in late 2025 by publicly encouraging white male employees to come forward with discrimination complaints.

Along similar lines, the Nike investigation illustrates the EEOC’s willingness to scrutinize employer statements about diversity commitments, even when those statements only appear in public disclosures and are not tied to actual employment actions. Overall, these developments suggest that majority-group reverse discrimination claims are likely to surge over the course of 2026, and that employer diversity initiatives will face greater EEOC attention.

Recommendations For Employers

Since employers may no longer rely on the rescinded EEOC Guidance on workplace harassment, employer harassment policies should be reviewed by legal counsel to ensure they are grounded in statutory requirements and Supreme Court precedent.

Further, employers are cautioned to remain vigilant against potential violations of the discrimination laws by training all managers and supervisors to ensure that all employment decisions are supported by well-documented, non-discriminatory and non-retaliatory rationales.

Finally, as the EEOC is actively pursuing litigation and enforcement actions based on DEI programs, employers should consider reassessing those programs and reviewing the language used in affirming their DEI goals. Specifically, employers should ensure that attendance at any events and opportunities is inclusive and offered to all employees, and that any such programming is mission-driven and aligned with business outcomes, rather than aimed at bolstering any one protected category of employees.

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Schwartz Hannum will continue to monitor the latest trends at the EEOC under the Trump Administration’s mandates as they evolve and impact employment policies. If you have any questions about these recent changes or any other employment concerns, please feel free to reach out to one of our experienced employment lawyers.