By: Sarah Bauman, Christopher J. DeGroff, and Andrew L. Scroggins

Seyfarth Synopsis: In a noteworthy ruling from the District of Colorado, the Court awarded A&A Appliance, Inc. (“A&A”) a full award of attorneys’ fees, deeming the Equal Employment Opportunity Commission’s claims “frivolous, unreasonable, and without foundation.” The decision in EEOC v. A&A, No. 23-cv-02456 (D. Colo.) offers employers a potential roadmap for pushing back on questionable EEOC litigation.

The ruling underscores that, under the right circumstances, courts are willing to closely scrutinize the evidentiary support behind EEOC claims, particularly where the agency has had years to investigate before filing suit, and to impose consequences where that support is lacking.

The decision equips employers with stronger arguments to challenge weak cases early, creates potential leverage to seek recovery of full defense costs, and provides additional pressure points in settlement negotiations where the EEOC’s claims cannot withstand scrutiny.

Relevant Case Background

This case involves allegations that A&A violated the Americans with Disabilities Act by failing to accommodate Karima Javanzad and terminating her employment.

In April 2020, Ms. Javanzad requested twelve weeks of leave under the Family and Medical Leave Act for reasons that varied, including contracting COVID-19, caring for her son with COVID-19 or pneumonia, or an ailing from a gastrointestinal condition. A&A approved retroactive leave from March 15 to June 7. After weeks of communication about her leave and a possible extension, A&A terminated Ms. Javanzad for failing to return to work, stating it would not extend leave for her gastrointestinal condition, as it was unrelated to her COVID-19 diagnosis.

Both parties later moved for summary judgment. On September 3, 2025, the court granted A&A’s motion, holding the EEOC failed to establish a prima facie case because A&A lacked notice of a disability requiring accommodation.

The Court’s Analysis and Decision

The Court concluded that the defendant was entitled to attorney’s fees because the EEOC’s claims were “frivolous, unreasonable, or groundless” under Christiansburg v. EEOC, 434 U.S. 412, 422 (1978).

The Court first recognized that the Tenth Circuit (which includes Colorado) has affirmed the Eleventh Circuit’s factors to determine whether a claim is “frivolous, unreasonable or groundless” under Christiansburg. Those factors include: (1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial. Here, all of these factors supported a fee award, as the EEOC failed to establish a prima facie case, the defendant offered to settle, and the case was dismissed on summary judgment.

The Court also addressed the EEOC’s preferred formulation of Christiansburg – that fees are warranted only where a plaintiff “utterly fails to produce any evidence” supporting essential elements. The Court rejected that as the exclusive test, explaining the EEOC’s version was just one way to satisfy the fee-shifting standard, not the only one.

But the Court found the EEOC failed even under its own heightened standard. The EEOC produced no evidence that the employer knew of the alleged disability, which is an essential element of its claims. Emails referencing “health conditions” and leave requests were insufficient to show knowledge of a qualifying disability. That failure alone justified summary judgment, and supported an award of attorneys’ fees incurred by A&A in connection with the litigation.

The Court further found the EEOC acted unreasonably in continuing to litigate despite this defect, particularly given it had years to investigate the matter before filing its lawsuit, and possessed facts undermining its claims from the outset.

Finally, and importantly, the Court recognized, quoting Christiansburg, that “[a] district court may consider distinctions between the Commission and private plaintiffs in determining the reasonableness of the Commission’s litigation efforts” (quotations omitted). As such, the Court held: “Ms. Jazanzad might have been excused from pressing these issues. The EEOC is not.”

Implications for Employers

This decision offers several important takeaways for employers facing EEOC enforcement actions. While uncommon, this case confirms that courts can award attorneys’ fees where the EEOC pursues claims lacking any evidentiary support. In this case, as well as another district court decision we recently covered here, the employer’s lack of knowledge alone was sufficient to warrant summary judgment. As EEOC v. A&A demonstrates, failure to produce evidence on a single required element can justify both summary judgment and in rare instances, a fee award. The prospect of fee-shifting can be a powerful negotiation tool, as well. Where a case is plainly meritless, raising the risk that the EEOC may be required to pay defense costs can create meaningful pressure for early resolution. Indeed, this opinion recognizes that courts may scrutinize the EEOC more closely than private plaintiffs, given its duties to investigate and cease pursuing unsupported claims.

By: Samantha L. Brooks, Christopher J. DeGroff, and Andrew L. Scroggins

Seyfarth Synopsis: In a critical development, the EEOC has officially replaced its Strategic Enforcement Plan (SEP) for Fiscal Years 2024–2028 with a new National Enforcement Plan (NEP) for Fiscal Years 2025–2029, signed by Chair Andrea R. Lucas on June 4, 2026.  The transition represents a fundamental shift of the agency’s enforcement philosophy, priority structure, and relationship to the Trump administration. Here is our detailed breakdown of what changed, what survived, what was scrapped, and importantly, what employers need to know and consider now.

I. The Big Picture: A Philosophical Overhaul

The EEOC’s Strategic Enforcement Plan has, for years, served as the agency’s compass.  Commission resources, administrative investigations, and EEOC lawsuits were all measured against the SEP.  The SEP was rooted in a social justice framework, and committed the agency to supporting “lawful and appropriate diversity, equity, inclusion, and accessibility (DEIA) practices.”

The NEP — supported by EEOC Chair Andrea Lucas and fellow Republican Commissioner Brittany Panuccio[1] — adopts a starkly different posture. It opens by “reaffirm[ing] that [the EEOC] is an executive branch agency” and declares that “the Commission will use its discretion in its deployment of its enforcement authority to advance the Administration’s policy objectives and comply with relevant Executive Orders.”  In place of the racial and economic justice framing, the NEP has a clear law-enforcement-first orientation, with explicit alignment to White House policy directives, including Executive Order 14281, Restoring Equality of Opportunity and Meritocracy.

What this means for employers: While the SEP positioned the EEOC as an independent civil rights champion, the NEP positions it as an executive branch law enforcement agency taking its marching orders from the Administration.

II. Structural Changes: Washington Takes the Wheel and Ends Local EEOC Enforcement Priorities

Under the SEP, the agency operated through a combination of national priorities and District Complement Plans — locally tailored enforcement strategies that allowed individual District offices to identify region-specific vulnerable populations and enforcement targets, while still adapting the agency’s SEP.

The NEP abruptly withdrew all District Complement Plans and other local enforcement plans or priorities.  In their place, the NEP emphasizes that the EEOC must “function as a national law enforcement agency,” with the Chair directing “collaboration, coordination, and communication” across all offices.  The NEP contemplates nationwide staffing deployments, including reassigning matters across Districts and deploying headquarters personnel to field operations depending on the nature of a particular matter.

What this means for employers: Multi-state employers should expect more uniform enforcement. The patchwork of District-level priorities that sometimes allowed employers to predict regional enforcement trends is gone. The agency now plans to operate from a single national playbook. This will likely take time, but we expect to observe increased consistency in the coming months.

III. Disparate Impact: A Doctrinal Sea Change

One of the NEP’s most consequential provisions is its outright abandonment of disparate impact theory. The now-defunct SEP (and years of prior enforcement announcements) specifically incorporated the disparate impact framework to pursue facially neutral policies with unequal outcomes.  Indeed, the SEP priorities around barriers in recruitment and hiring, AI in decision-making, and background checks all implicated disparate impact analysis.

Through the NEP, the Commission states that “allegations of intentional discrimination (disparate treatment) by an employer inherently are more egregious forms of discrimination than unintentional disparities between groups of employees which arise from an employer’s neutral policies or practices (disparate impact).”

Citing Executive Order 14281, the NEP commits the EEOC to:

  • Prioritize disparate treatment theories of liability;
  • Eliminate the use of disparate impact liability theories in investigations “to the maximum degree possible”; and
  • Not commence, develop, or continue to pursue litigation advancing disparate impact claims.

What this means for employers: Disparate impact remains a valid statutory theory codified in the Civil Rights Act of 1991, as the NEP itself acknowledges. But the EEOC will no longer be the vehicle through which these claims are advanced at the federal level. Private plaintiffs, state attorneys general, and state civil rights agencies remain free to pursue disparate impact theories, and employers should be on the lookout for such claims.

IV. DEI Squarely in the Crosshairs

The NEP’s specificity on DEI deserves special mention. The EEOC has identified the following practices as potential enforcement targets:

  • Race- or sex-based quotas, including “aspirational goals” that function as proxies for quotas or that incentivize race- and sex-based decision-making in hiring, staffing, layoffs, and promotions;
  • Diverse slate policies and diverse hiring panel policies;
  • Diversity statements required of candidates;
  • Sharing employee race or sex data with managers, the public, or non-HR personnel;
  • Rubrics or evaluation methods that consider protected characteristics;
  • Executive compensation or bonuses tied to demographic goals or diversity metrics; and
  • Limiting access to training, internships, fellowships, mentorship, sponsorship, apprenticeships, employer-sponsored groups or events, bonuses, or other terms and conditions of employment on the basis of protected characteristics.

What this means for employers: This is the most detailed roadmap the EEOC has published for DEI-related enforcement. The specificity strongly suggests the agency already has enforcement targets in mind.  In fact, the NEP specifically references DEI programs and practices “often adopted by large corporations, prominent universities, and other elite institutions.”

V. Substantive Changes: A Priority-by-Priority Comparison

Below, we walk through each of the NEP’s six subject-matter priorities and compare them against the SEP’s framework.

Priority 1: Repeated, Overt, and Intentional Discrimination

The first NEP priority is cases involving repeated or overt discrimination or intentional discrimination.  The EEOC provides numerous examples of this, including:

  • Job advertisements excluding or encouraging certain individuals to apply, including targeting applicants based on race (including encouraging “diverse candidates” to apply) or national origin (including encouraging “guest worker visa holders” or “PERM applicants” to apply, and practices or preferences for guest worker visa holders or PERM applicants[2]), or other practices or policies labeled or framed as diversity, equity, and inclusion (including quotas or aspirational goals, limiting access to any term, condition, or privilege of employment based on protected characteristic, or otherwise using race and sex in any decision, including diverse slate policies, diverse hiring panel policies, and any other candidate evaluation practices and compensation practices tied to a protected characteristic or diversity goals);
  • Staffing agencies that exclude individuals from employment based on protected characteristics;
  • Mass denials of accommodations; and
  • Systematic harassment.

Of note, while systemic harassment appears alongside other examples of overt discrimination in the NEP, its prominence is dramatically reduced as compared with the previous SEP.  The now-scrapped SEP devoted an entire standalone priority to systemic harassment, backed by detailed statistical data showing over 34% of charges between FY 2018–2022 included a harassment allegation.  By contrast, the NEP’s only direct mention of systemic discrimination is a single line item in an enumerated list.

Key takeaway: The SEP’s hiring-barrier priority was largely aimed at systemic practices that disproportionately screened out minorities and women. The NEP has flipped this lens: its hiring-related enforcement is focused on protecting American workers from being disadvantaged in favor of visa holders. Chair Lucas has designated “Protecting American workers from anti-American national origin discrimination” as one of four Chair Priorities discussed below.

Priority 2: Legal Doctrine, Recent Supreme Court Precedent, and Statutory Interpretation

The second priority emphasizes cases with the potential to promote the development of law interpreting the anti-discrimination statutes the EEOC enforces.  The NEP highlights in particular “the application or scope of recent Supreme Court precedent or presenting unresolved issues of statutory interpretation,” highlighting some specific cases. These include Title VII claims under Ames v. Ohio Department of Youth Services (holding the same standard applies when majority group members allege discrimination); Muldrow v. St. Louis (holding that “some harm” is enough to show an applicant or employee suffered an adverse action); Students for Fair Admissions (holding that protected characteristics cannot be a consideration in admission decisions, which some argue extends to employment decisions as well); Groff v. DeJoy (holding that employers are obligated to provide reasonable accommodations for sincerely held religious beliefs of employees); and Bostock v. Clayton County (holding that discrimination based on sexual orientation can be sex discrimination, but here extending the holding to single-sex intimate spaces, employers’ and employees’ right to express the binary nature of sex, and employees’ rights to religious accommodations). Also described are the scope of liability under the Pregnant Workers Fairness Act; and cases where there is a federal circuit split on an NEP priority or in which the agency is seeking Supreme Court resolution.

Key takeaway: The SEP’s “emerging issues” priority was forward-looking, oriented toward expanding protections for new categories of workers and new forms of discrimination. The NEP’s emerging-issues equivalent is backward-looking in a sense and is focused on limiting the scope of recent legal developments (like Bostock) and on targeting what it views as overreach by prior EEOC leadership.

Priority 3: Vulnerable Workers

The third priority is a focus on vulnerable workers, “including teenage workers, persons with limited literacy or education, individuals employed in low wage jobs, survivors of sexual assault, and workers with developmental or intellectual disabilities.”

Key takeaway: The NEP’s vulnerable worker category is dramatically narrower than the SEP’s version. Several populations that the SEP previously singled out for “focused attention” no longer make the cut, including LGBTQI+ individuals, immigrants, people with arrest records, and older workers. Employers who relied on the SEP’s expansive vulnerable-worker framework to anticipate enforcement activity should consider recalibration.

Priority 4: The Commission’s Enforcement Process

The fourth priority is a focus on cases “involving the integrity or effectiveness of the Commission’s enforcement process, including cases involving: claims of retaliation; cases where a respondent’s “defense is rooted in a challenge to a Commission policy documents;” cases “protecting Commission access to information,” such as subpoena enforcement actions (which we have already seen increase this year); cases involving breaches of Conciliation Agreements or Consent Decrees; and cases involving violations of recordkeeping and reporting requirements.

Key takeaway: This priority reflects the Commission’s view of itself as a law enforcement agency, and apparent desire to maintain the integrity of the investigative and enforcement process.  Employers should continue to be on the lookout for retaliation claims, which we have already seen increase in popularity over the last several fiscal years. We also expect the EEOC will be paying particular attention to compliance with the terms of settlements with the government; something that in the past was often an afterthought.

Priority 5: Amicus Briefs in Cases Involving Religious Discrimination

Interestingly, this priority specifically applies to cases where the EEOC may serve as an amicus.  The EEOC will look at “matters involving religious organizations and religious employers” where it can “clarify the constitutional and statutory limitations regarding liability under the statutes it enforces.”

Key takeaway: This priority relates to other priorities involving claims of religious discrimination and accommodations for sincerely held religious beliefs of employees, and the Chair’s Priority, discussed below, regarding protecting workers’ religious liberty rights.

Priority 6: “Evenhanded Enforcement”

This priority says that the EEOC “should ensure evenhanded enforcement of the civil rights laws enforced by the agency, mindful that as public servants, EEOC staff are working on behalf of all American workers protected by these laws.”

Key takeaway:  This — alongside the NEP’s citation to Ames v. Ohio Department of Youth Services (which addressed majority-group standing under Title VII) — signals that the EEOC does not view enforcement limited to historically disadvantaged groups, and that the agency will be more willing to bring cases where the charging party is in a majority group (i.e., white employees, men, US-born workers).  Indeed, as detailed elsewhere in the NEP, the EEOC is expected to prioritize claims by majority-group workers and claims related to DEI practices.

VI. What Else is Missing from the NEP?

Notably absent from the NEP is a priority related to access to justice.  The SEP’s access-to-justice priority was a major driver of EEOC challenges to broad arbitration agreements and restrictive settlement terms. Its absence from the NEP could signal a meaningful de-escalation on these fronts.

After years of being an EEOC focus, equal pay has not survived as a named enforcement priority. While the EEOC retains jurisdiction over equal pay claims, the absence of this priority from the NEP likely means fewer proactive systemic investigations in this area.

Under the SEP, AI and machine learning in hiring were top enforcement concerns, but they are not identified as a standalone priority in the NEP, nor is AI even mentioned in the NEP.

VII. The Four “Chair Priorities”

The NEP introduces a new mechanism: “Chair Priorities,” designated by Chair Lucas and subject to change at the Chair’s discretion. The initial four are:

  1. Remedying DEI-related race and sex discrimination;
  2. Protecting American workers from anti-American national origin discrimination;
  3. Defending women’s rights to single-sex spaces at work and workers’ rights to express the binary nature of sex; and
  4. Protecting workers’ religious liberty rights.

The SEP had no comparable mechanism for individual-Commissioner-designated priorities. Under the SEP, priorities were set by Commission vote and required a majority to modify.  The Chair Priority mechanism appears to give the Chair a more agile tool for directing enforcement focus without a full Commission vote, and subject to change at any time for any reason.

VIII. What Employers Should Consider Now

Based on our analysis of both documents, here are the critical action items:

1. Revisit DEI. The NEP provides a specific enforcement roadmap. If your organization uses diverse slates, demographic-linked compensation, mandatory diversity statements, race- or sex-conscious evaluation rubrics, or restricts access to programs based on protected characteristics, these are squarely in the agency’s sights.  There is significant disagreement on what is lawful in this space, but being aware of this as an enforcement target is an important consideration.

2. Revisit Religious Accommodation Processes. The NEP and Chair Priorities elevate religious liberty to a top enforcement concern, specifically invoking Groff v. DeJoy. Employers should review their processes in this area to ensure compliance with Title VII.

3. Review Guest Worker and Visa-Related Hiring Practices. The NEP’s focus on “anti-American national origin discrimination” and preferencing of visa holders is new territory for the EEOC.  Employers should pay attention to job postings, staffing contracts, and hiring workflows in light of this EEOC focus.

4. Prepare for Centralized, Coordinated Enforcement. The elimination of District Complement Plans and the creation of a national deployment model means enforcement actions may be more strategic and better-resourced.  Employers should not assume that a District office’s historical enforcement posture will predict its future activity.

5. Monitor Executive Orders. The EEOC has now been clear that it is taking its enforcement cues from the Administration.  Tracking Executive Orders is now, functionally, an EEOC compliance exercise.

6. Don’t Neglect the Priorities That Survived. Protections for vulnerable workers (particularly teenage workers, low-wage workers, and workers with developmental disabilities) remain in the NEP.  The EEOC will continue to process the hundreds of thousands of charges it receives annually across all bases. The NEP shifts priorities but it does not eliminate the agency’s statutory obligations.

Implications for Employers

The transition from the SEP to the NEP is a wholesale reorientation of the government’s primary workplace anti-discrimination enforcement agency. The SEP’s six broad priorities — built around systemic barriers, vulnerable communities, emerging social issues, and access to justice — have been replaced by a leaner, more politically charged set of priorities centered on DEI enforcement, religious liberty, the binary nature of sex, and the protection of American workers over visa holders. Employers should pay close attention to the new priorities we have described above, and batten down the hatches for what could be swift enforcement of these areas.

We will continue to monitor implementation and will update this space as enforcement actions and litigation emerge under the new framework.

[1] Democratic commissioner Kalpana Kotagal voted against the NEP.

[2] In practice, this translates to charges brought by US-born workers involving claims of national origin discrimination where a charging party challenges hiring practices based on a preference for foreign workers or PERM recruitment practices or policies.

We are once again pleased to provide you with the latest edition of our annual analysis of trends and developments in EEOC enforcement, EEOC-Initiated Litigation: 2026 Edition. This desk reference compiles, analyzes, and categorizes the major case filings and decisions involving the EEOC in 2025 and recaps the major policy and political changes we observed in the past year. The changes of the past year are the most dramatic we have witnessed in our years of following the EEOC, and we have included our observations and predictions for 2026 throughout this reference.

To access the book, please click here. As always, our goal is to guide employers through decisional law relative to charge investigations and EEOC-initiated litigation, and to empower corporate counsel, human resources professionals, and operations teams to make sound and informed decisions. We hope that you find this report to be useful.

By: Taylor Iaculla and Andrew L. Scroggins

Seyfarth Synopsis: Thirty days into the Federal government shutdown, few personnel of the U.S. Equal Employment Opportunity Commission (“EEOC”) are available and operations have been slashed. However, this does not mean that employers can put aside all EEOC-related concerns until the government opens again. New charges continue to be filed—though employers remain in the dark about the content or volume of potential claims—and deadlines continue to apply. While this pause may feel like a temporary reprieve, it is important for employers to stay alert and consider how their charge activity will be impacted by a continued shutdown.

The EEOC’s Contingency Plan

The EEOC published a contingency plan to be implemented in the event of a shutdown. Per the plan, nearly 93% of its workforce has been furloughed, and the EEOC has suspended all “nonessential” functions, significantly curtailing its operations. These “nonessential” functions include investigations into discrimination charges, as well as mediations, hearings, and outreach and education events. Likewise, Freedom of Information Act requests will not be processed, public inquiries will not be responded to, and the agency will not file new cases or litigate—except in instances where no stay or extension has been granted by the court for pending matters.

On the other hand, the funding lapse does not pause the 180- or 300-day statutory deadlines for filing a charge of discrimination. Thus, ongoing “essential” activities include critical functions related to charge intake and processing, overseen by the Office of Field Programs (“OFP”). Specifically, the OFP has a small number of personnel to assess and prioritize cases requiring immediate attention to ensure complainants do not miss their statutory deadlines.

Notably, the funding lapse also does not impact timelines for those charging parties who received notice of their right to sue before the shutdown began. The 90-day deadline for charging parties to file a lawsuit in federal court continues to run during the shutdown.

Impacts for Employers

The fact that complainants remain able to file charges with the EEOC means employers should prepare for the possibility that they will receive more notices of charges filed with and investigated by state agencies, which remain open, or an atypical influx of charges filed with the EEOC when the shutdown ends.

The ongoing charge intake without having EEOC personnel available to investigate and close charges also will only exacerbate the pre-existing backlog of cases before the EEOC. In addition, the longer the shutdown continues, the more likely it becomes that the EEOC will lose more employees to attrition, slowing charge processing even further. The ripple effects are difficult to forecast, but possibilities include more investigations handed to state agencies, longer investigation times if the EEOC decides its aim is to resolve charges on the merits, or a shorter timeline before right to sue letters are issued if the EEOC decides its aim is to trim its charge backlog.

Employers also should bear in mind that the contingency plan does not specify what employers’ obligations are with respect to existing deadlines to respond to charges of discrimination. Given this, employers should consider adhering to existing deadlines for responding to charges of discrimination, or submitting formal extension requests through the EEOC’s Respondent Portal to memorialize that the employer will be taking additional time in light of the ongoing shutdown.

Conclusion

The government shutdown has significantly impacted the operations of the EEOC, but employers should remain vigilant. For charges resolved by a notice of right to sue letter before the shutdown began, employers should be aware that charging parties are subject to the same deadlines for file their claims in Federal court. For pending charges, employers should consider either meeting response deadlines that already were set, or filing extension requests to preserve their rights. In addition, the EEOC continues to accept new charges, and employers will have no visibility to the volume or content of those charges until the shutdown ends and EEOC operations fully resume. Employers should watch for notices from state agencies stepping in to fill the void left by the EEOC, ad an influx of charge activity when the shutdown ends.

For more information on the EEOC or how the Federal government shutdown may affect your business, contact the authors—Taylor Iaculla and Andrew Scroggins—or a member of Seyfarth Shaw’s Complex Discrimination Litigation Group.

By: Christopher J. DeGroff, Andrew L. Scroggins, Samantha L. Brooks, and James P. Nasiri

Seyfarth Synopsis: While we viewed the EEOC’s Fiscal Year 2024 as “sluggish,” the Commission entered FY 2025 with a hefty budget, a brimming pipeline of charges, and a Democratic majority of Commissioners, suggesting a robust year of EEOC-initiated litigation was on the way. The EEOC’s fiscal year closed today, and what promised to be a watershed year was anything but.  The Trump Administration’s swiftly implemented leadership changes, budget cuts, and dramatic shift in priorities led to a roller-coaster for field staff and employers alike. Ultimately, the EEOC filed just 93 lawsuits in FY 2025, marking a ten-year low in Commission litigation activity. Despite a notable pullback in litigation activity, a close analysis of FY 2025 filings can help employers identify the EEOC’s priority areas and understand what to expect going forward.

In previous administrations, the EEOC’s litigation arm was extraordinarily active, filing as many as 300 merit lawsuits in a given year. These high levels of EEOC filing activity dropped significantly under the first Trump Administration, and this trend continued through the start of the COVID-19 pandemic. For instance, we previously reported totals of 94 merit filings in FY 2020, 111 filings in FY 2021, and 94 filing in FY 2022 (the EEOC’s fiscal year runs from October 1 to September 30).

By FY 2023, however, the EEOC under the Biden administration had installed a new Democratic Commissioner (Kalpana Kotagal) and General Counsel (Karla Gilbride), as well as securing a sizable budget increase from Congress. With these pieces in place, the EEOC revved its engines and filed 144 merit lawsuits in FY 2023, which marked a five-year high for the Commission. Many expected this momentum to continue into FY 2024 in light of the agency having its first Democratic majority in years. Yet, the EEOC surprisingly eased off the gas on its litigation activity in FY 2024, filing only 96 merit lawsuits last fiscal year.

With this background in mind, the EEOC’s FY 2025 started obscured by questions surrounding an upcoming presidential election and how it would shape the direction of EEOC enforcement. Following the election, President Trump took a series of swift actions, some unprecedented, that had a significant impact on EEOC leadership and enforcement. In late January 2025, President Trump took the anticipated steps of elevating Andrea Lucas to Acting Chair of the EEOC and terminated EEOC General Counsel Karla Gilbride. (President Biden had terminated the previous EEOC General Counsel, a Trump nominee.)  In an action without precedent, President Trump also fired EEOC Commissioners Charlotte Burrows and Jocelyn Samuels, both of whom had years left on their appointed terms. This left the EEOC without a quorum, as only Acting Chair Lucas and Commissioner Kalpana Kotagal remained as Commissioners. (A Trump appointee awaits Senate confirmation; Acting Chair Lucas was re-confirmed to remain as Commissioner for another five-year term.)

Which leads us to the most recent fiscal year from October 2024 through September 2025. The EEOC filed just 93 merit lawsuits this fiscal year. This represents not only a ten-year low, but also one of the lowest numbers of total filings lodged by the Commission in the past three decades. To put this number into context, in FY 2023, the EEOC filed 71 lawsuits in September alone. While there are still meaningful takeaways from the EEOC’s areas of focus in FY 2025, the bottom line is that EEOC litigation activity has now remained at historically low levels for the second consecutive year.  But what can we learn from the matters that actually hit the docket?

FY 2025 Cases Filed By Month

At the end of every EEOC fiscal year, the Seyfarth team analyzes each EEOC filing to identify key trends and provide our one-of-a-kind analysis. Beginning with the timing of the EEOC’s filings, the graphic below displays the number of EEOC lawsuits filed by month from FY 2022 through FY 2025.

In most years, the EEOC starts its fiscal year at a fairly slow pace.  This year, however, the Commission hit the ground running by filing 24 lawsuits in the first four months of its fiscal year. The EEOC filed 15 lawsuits in January alone, with the timing suggesting a response to the presidential election and EEOC enforcement personnel seeking to take action before a change in administration. After the change in administration, the EEOC also achieved a five-year high in terms of June filings when it launched 18 lawsuits in June 2025. While September was (once again) the EEOC’s busiest month, it was far less active at the end of its fiscal year as compared to prior years. The EEOC filed 35 lawsuits in September 2025, compared to 56 September filings in FY 2024, 71 September filings in FY 2023, and 46 September filings in FY 2022.

FY 2025 Cases Analyzed By EEOC District Office

In addition to tracking the total number of filings, we also monitor which of the EEOC’s 15 District Offices are most actively filing new cases. In FY 2025, we saw the Chicago District Office return to its typically-high levels of filing activity by leading the pack with 11 merit lawsuit filings. Behind Chicago, Philadelphia (8 filings), Indianapolis (8 filings), and Houston (8 filings) also had busy years, which is in keeping with recent trends from those offices.

Conversely, Districts that have traditionally been very busy— such as Los Angeles, New York, and San Francisco—were noticeably quiet this year, as these Offices filed only 4, 6, and 3 lawsuits, respectively. This drop in filings from the West Coast Offices has now remained consistent for the last several fiscal years, and stands in stark contrast to the Obama-era EEOC, under which these West Coast Offices filed dozens of lawsuits per year.

Analysis of the Types of Lawsuits Filed in FY 2025

While the quantity and location of EEOC filings offer a view into the Commission’s litigation activity in a given year, analyzing the types of claims being asserted in EEOC lawsuits separately provides valuable insights regarding the EEOC’s specific areas of emphasis. In FY 2025, despite the continued decrease in overall filings, the EEOC’s filing numbers generally aligned with prior years. This means that the vast majority of EEOC lawsuits were filed under Title VII and the Americans with Disabilities Act. The Commission also filed nine lawsuits under the Age Discrimination in Employment Act in FY 2025. Additionally, while Equal Pay Act claims are typically not a common target for EEOC lawsuits, the EEOC did not file any EPA claims this fiscal year.

The ADEA is typically the third-most commonly statute cited in EEOC lawsuits, but in FY 2025, the ADEA was overtaken by filings asserting pregnancy-related violations. This fiscal year, the EEOC filed 10 lawsuits under the Pregnancy Discrimination Act and/or the newly-enacted Pregnant Workers’ Fairness Act. When considering claims asserted on the basis of either sex or pregnancy, the EEOC filed a whopping 37 cases alleging such claims. This emphasis on sex and pregnancy-related issues aligns with public statements by Acting Chair Lucas, who has placed an emphasis on enforcing protections in both of these areas.

It is important to note, however, that the EEOC under Acting Chair Lucas has pursued sex-based discrimination without stepping into the area of LGBTQ-related workplace issues. Indeed, on January 28, 2025, the EEOC issued a statement in which Acting Chair Lucas emphasized, “[b]iological sex is real, and it matters . . . Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truth—or to use language like pronouns that flow from these realities, even repeatedly.” To that end, the EEOC in FY 2025 filed only two lawsuits concerning transgender workers or other gender identity issues: EEOC v. Starboard Group, Inc., et al., No. 3:24-cv-2260 (S.D. Ill.) and EEOC v. Brik Enterprises, Inc., et al., No. 2:24-cv-12817 (E.D. Mich.). Both of these lawsuits were filed in October 2024 during the Biden administration. It did not take long for the EEOC to reverse course on these matters. Following President Trump’s January 20, 2025 Executive Order titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” the EEOC moved to dismiss both of these actions (although private plaintiffs intervened to continue pursuing these claims). No such actions have been filed since.

Taking a closer look at these numbers, the ADA once again remained a focus for the EEOC. Despite the change in administration and the subsequent shifts to EEOC leadership, ADA issues remained at the top of the EEOC’s priority list. The Commission filed 34 disability-related lawsuits in FY 2025, which is more than it filed in FY 2022, despite overall activity in FY 2022 far outpacing filings this year. In terms of the specific disabilities at issue in these lawsuits, the EEOC built on a trend that started last year by continuing to sue on behalf of individuals with hearing or vision impairments, and those that may be difficult for employers to identify and accommodate, such as depression, anxiety, PTSD, and other mental health conditions.

On the other hand, the EEOC filed significantly fewer cases asserting race or national origin discrimination in FY 2025. The Commission filed only three such lawsuits in FY 2025, compared to 14 in FY 2024, 27 in FY 2023, and 17 in FY 2022. In fact, FY 2025 saw the lowest number of race / national origin-based filings by the EEOC in at least a decade. Two of three lawsuits that the EEOC did file were both grounded in theories of reverse discrimination. (EEOC v. Leopalace Guam Corp., No. 1:25-cv-4 (D. Guam) asserted claims of discrimination against non-Japanese workers, while EEOC v. Seward and Son Planting Co., No. 4:25-cv-155 (N.D. Miss.) asserted claims of discrimination on behalf of Black, American workers, with allegations that the employer gave preference to non-Black, non-American workers.) Along these same lines, the EEOC published a press release in February 2025 in which Acting Chair Lucas committed to protecting American workers from anti-American bias. 

Another interesting takeaway from this year’s filing activity concerns religious discrimination. In 2023, we reported on the striking rise of over 600% in religious discrimination charges during the COVID-19 pandemic. Despite this increase from 2,111 religion-based charges in FY 2021 to nearly 14,000 religion charges in FY 2022, the EEOC filed just four religion-based lawsuits in FY 2024. In FY 2025, however, it appears the backlog of EEOC religious discrimination charges has fed the EEOC’s litigation activity, as the Commission filed 11 lawsuits asserting religious discrimination or failure to accommodate religious beliefs under Title VII. This trend once again aligns with the EEOC’s stated enforcement agenda, as the EEOC released a public statement in August 2025 touting its efforts to protect religious freedom in the workplace. Acting Chair Lucas was quoted in the statement as commenting that, “[d]uring the previous administration, workers’ religious protections too often took a backseat to woke policies. Under my leadership, the EEOC is restoring evenhanded enforcement of Title VII—ensuring that workers are not forced to choose between their paycheck and their faith.”

Our analysis of the EEOC’s FY 2025 filing activity has revealed a number of other important trends that should be on every employer’s radar. As a preview to our annual EEOC-Initiated Litigation Report (click HERE to view last year’s Report), other relevant takeaways from the EEOC’s FY 2025 include:

  • Industry: Nearly one out of five of the EEOC’s merit lawsuits were filed against employers in the healthcare industry. Additionally, while the Commission continued its practice of suing several household name brands, the EEOC unexpectedly focused much of its litigation efforts on very small regional or local businesses, some barely employing enough people to meet the definition of an “employer” under EEO statutes. The Commission also filed multiple lawsuits against state/local government entities, which is not typical of the EEOC.
  • Scope: Since 2006, the EEOC has made “the identification, investigation, and litigation of systemic discrimination cases (i.e. pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area)” a top priority in its litigation playbook. Despite this clear and consistent focus on systemic litigation, the EEOC filed the vast majority of its FY 2025 lawsuits (nearly 75%) on behalf of just one individual. This is likely connected to the EEOC’s lack of a quorum; large-scale “class” cases require a Commission vote, and the EEOC currently does not have the pieces in place to make such moves. This is explained in more detail below.
  • Timing: Another aspect of our analysis concerns the average timing of an EEOC investigation and lawsuit, i.e., how many days typically spent in conciliation, and how many days typically elapse between a failed conciliation and a lawsuit filing. In FY 2024, the EEOC spent an average of 80 days in conciliation, and another 116 days between the notice of conciliation failure and the filing of a complaint. In FY 2025, the average time spent in conciliation was roughly the same (83 days), but in contrast to FY 2024, the EEOC took an average of 205 days from a failed conciliation before it filed a complaint in FY 2025.

Returning to the issue of the generally narrower scope of the claims filed this year, the absence of a quorum constrains the EEOC. When, as now, there is not a quorum of Commissioners, the General Counsel has power under an earlier delegation of authority to file routine cases. However, the delegation of authority does not extend to filing cases involving: allegations of systemic discrimination; allegations of pattern or practice discrimination; major expenditures of agency resources, including staffing and staff time, or expenses associated with extensive discovery or expert witnesses; positions contrary to precedent in the Circuit in which the case will be filed; and other cases reasonably believed to be appropriate for approval by the Commission, e.g., cases that implicate areas of the law that are not settled and cases that are likely to generate public controversy. The class and collective claims filed as FY 25 drew to a close may cross those lines, inviting challenges to the Agency’s ability to litigate the cases.

Implications For Employers

While FY 2025 was another quiet year in terms of EEOC litigation, a close analysis of the EEOC’s strategic litigation decisions can help employers identify key compliance areas going forward. For instance, although the EEOC under the Trump Administration is unlikely to pursue LGBTQ-related litigation, the Commission remains focused on protecting employees’ religious rights and vigorously enforcing pregnancy discrimination laws in the workplace. Moreover, while the EEOC has traditionally focused its litigation efforts on larger corporations, the EEOC’s FY 2025 filing activity demonstrated its willingness to sue smaller regional businesses and even local government entities. It is also evident that employers in the healthcare industry—as well as those in the Chicago, Indianapolis, and Philadelphia regions—should be particularly careful with respect to EEOC investigations potentially evolving into litigation.

Finally, EEOC activity should not be viewed in a vacuum.  The private plaintiff’s bar often follows in the path cut by the EEOC.  Anecdotally, we already see this “follow-the-leader” phenomenon by private litigants in courts around the country.  Employers should view these trends not merely as a question of whether the EEOC will noisily target certain areas, but the vulnerabilities to private litigation that follow increased attention and focus on issues highlighted by the EEOC.

We will continue to monitor these changes closely and keep readers apprised of developments. And, as always, we will keep up-to-date on EEOC data amid the ever-changing political climate and another quiet year at the Commission.

For more information on the EEOC or how the Commission’s filing activity may affect your business, contact the authors—Christopher DeGroff, Andrew Scroggins, Samantha Brooks, and James Nasiri—or a member of Seyfarth Shaw’s Complex Discrimination Litigation Group.

By: Samantha L. Brooks, Andrew Scroggins, and Chris DeGroff

Seyfarth Synopsis: The Acting Chair of the EEOC has been renominated to serve another term as commissioner, and testified at her confirmation hearing on June 18, 2025.  Confirmation is required for her to continue as Acting Chair.  Ms. Lucas’ testimony confirmed her allegiance to the Trump administration, and its EEO-related priorities.

On June 18, 2025, Andrea Lucas, Acting Chair of the Equal Employment Opportunity Commission, testified at a confirmation hearing before the Senate Committee on Health, Education, Labor and Pensions.  Ms. Lucas was appointed by President Trump during his first administration in 2020 for a term running through July 1, 2025, and was appointed by him as acting chair in January 2025.  In March, President Trump renominated Ms. Lucas as EEOC commissioner for a second term that would extend her tenure through July 2030.

Ms. Lucas’ time as acting chair to date reflects her alignment with President Trump’s executive orders and other policy priorities, including de-prioritizing claims asserted by nonbinary and transgender workers, rolling back protections for transgender workers (and sharply criticizing what Ms. Lucas called Biden-era “weaponiz[ation]” of the EEOC in this area), and vocally opposing diversity, equity, and inclusion programs, and turning the EEOC’s focus toward anti-American national origin discrimination and protecting workers from religious bias and harassment.

During her testimony, Ms. Lucas confirmed her continued alignment with the Trump administration’s priorities.  In her prepared remarks, Lucas vowed: “As the head of the EEOC, I am committed to dismantling identity politics that have plagued our civil rights laws.”  She also referred to President Trump’s “landmark civil rights executive orders” and said “President Trump has given the EEOC the most ambitious civil rights agenda in decades.”

Although Ms. Lucas was clear she intends to enforce President Trump’s executive order recognizing only two sexes and deprioritizing claims regarding discrimination against transgender individuals, Ms. Lucas declined to answer a question about how the EEOC will handle discrimination complaints from transgender workers, in light of a purported April 2025 order to classify all new gender identity-related discrimination cases as its lowest priority, which has the effect of  deeming such claims as meritless, citing agency deliberative process privileges.

Ms. Lucas also echoed the Trump administration view that the EEOC is not an independent federal agency.  Previously, the EEOC has viewed itself as an independent federal agency, a position also staked out on the Department of Labor’s website; however, during the hearing, Ms. Lucas stated that “the EEOC is not an independent agency” but rather, is an executive agency that must comply with the President’s orders.  Lucas continued: “If the president gives me a lawful directive, which I’m confident that he would do, then I would obey that directive.”  She also said: “I think it is entirely appropriate for the president to direct the enforcement actions of the agency, consistent with the law.”  Nevertheless, Lucas declined to answer a question if she would obey orders to dismiss or file particular lawsuits against companies, again citing agency deliberative process privileges.

Lucas is expected to be confirmed by the Republican-controlled Senate, though the timing for a final vote is not known at this time.

Since January, when President Trump fired two of the EEOC’s Democratic commissioners, the EEOC has been without a quorum.  This has inhibited Ms. Lucas’ and the EEOC’s ability to issue or amend (or rescind) guidance and regulations, and otherwise pursue Lucas’ and President Trump’s priorities.  President Trump recently nominated Brittany Panuccio, currently an assistant U.S. attorney in the Southern District of Florida, to serve as a commissioner and, if confirmed (though, confirmation will take some time), Panuccio would give the EEOC a quorum. 

Implications for Employers: If Ms. Lucas is confirmed and the EEOC obtains a quorum, we can expect to see the EEOC’s priorities, including investigation and litigation priorities, and rule-making priorities, to stay centered around the Trump administration’s stated goals: investigating and ending DEI practices, and defending a binary view of sex and related rights. Employers should continue to monitor their policies and practices in light of this shift in agency focus.

For more information about the EEOC, its composition and litigation activity, please see Seyfarth Shaw’s EEOC-Initiated Litigation – 2025 Edition or contact your Seyfarth attorney or the authors of this post.

Seyfarth Synopsis: On June 5, 2025, the U.S. Supreme Court changed course and dismissed the writ of certiorari that it previously had granted in Laboratory Corporation of America Holdings v. Davis, No. 24-304 (U.S. June 5, 2025).  In doing so, the Supreme Court passed on the chance to decide the question that had been presented, namely: whether federal courts may certify a Rule 23 damages class that includes both injured and uninjured members.  These sorts of issues are frequently litigated in the employment context.  The Supreme Court’s decision is not helpful to employers in the near term, since it does not restrict these class actions as a rule in federal court.  However, the Supreme Court has not closed the door on revisiting the issue, and the inclusion of uninjured class members can still provide grounds for defendants to oppose certification in the meantime. 

Case Background

Defendant Labcorp offered patients on-site, self-service, touchscreen kiosks to check in for their appointments at its patient service centers.  These touchscreen kiosks were offered in addition to either checking in at the front desk or the online check-in process that patients could complete before they arrived.  The kiosks were not accessible to blind patients unless the patients had assistance.  To address the accessibility issue, Labcorp ensured that its patient service centers had at least one employee available who could check in patients at the front desk using the same technology used in the kiosks.     

Luke Davis and Julian Vargas—both of whom are legally blind—filed a class action against Labcorp under Title III of the Americans with Disabilities Act (“ADA”) and the California Unruh Civil Rights Act (“Unruh Act”), which considers violations of the ADA to constitute violations of the state law and provides for a minimum of $4,000 in damages for each offense.  The plaintiffs alleged that Labcorp denied them and other blind individuals full and equal access to the patient service centers because the kiosks were inaccessible to them.  However, the record indicated that many class members were not actually harmed by Labcorp’s new kiosks on account of not being able to use them because, for instance, they would prefer to use the front desk anyway.

The district court certified a class of potentially more than 100,000 blind individuals seeking nearly $500 million in damages under the Unruh Act per year.  While Labcorp’s petition for interlocutory appeal was pending with the Court of Appeals for the Ninth Circuit, the district court clarified the class definition without materially altering the composition of the class or changing its original class certification order, which the Ninth Circuit subsequently affirmed.

The Supreme Court’s Decision

The U.S. Supreme Court initially granted certiorari to decide whether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.  Before reaching the question, however, in a single-sentence per curiam decision, the Supreme Court reversed course and ordered that the writ of certiorari was dismissed as “improvidently granted.”  Those eagerly awaiting the answer to the question are now left to wait for the next test case.

Justice Kavanaugh, in the lone dissent, raised some frustrations likely to be shared by those left waiting.  Presuming that his colleagues did not “want to deal with” the plaintiffs’ threshold argument that the matter was moot because the district court’s original class certification order was supplanted by its subsequent order clarifying the class definition, Justice Kavanaugh rejected the argument as “insubstantial” as, among other things, the subsequent order did not materially change the original order that actually granted class certification and that Labcorp appealed. 

Justice Kavanaugh also addressed the merits with respect to the question presented.  Justice Kavanaugh characterized the case as “straightforward” under Rule 23 and the Supreme Court’s precedents.  While Rule 23 requires that common questions predominate in damages class actions, common questions do not predominate in a class consisting of both injured and uninjured members.  Justice Kavanaugh also agreed with the United States, which had joined as amicus curiae, that “if there are members of a class that aren’t even injured, they can’t share the same injury with the other class members.”  Justice Kavanaugh also clearly signaled where he will stand if the issue reaches the Supreme Court in the future; he would have held that federal courts may not certify a proposed damages class under Rule 23 when the class includes both injured and uninjured members.

Justice Kavanaugh warned that the Ninth Circuit’s decision to the contrary will “generate serious and real-world consequences.”  Pointing to the half a billion dollars a year that Labcorp was facing in potential damages, Justice Kavanaugh explained that classes “overinflated with uninjured members” can force companies into agreeing to “costly settlements” under the threat of “massive liability.”  In turn, companies pass on these costs to consumers, retirement account holders, and workers, ultimately harming each of these groups, among others. 

Implications For Employers

This decision had the potential to significantly limit class actions in federal court.  As Labcorp noted in its petition for a writ of certiorari, “around 10,000” class action lawsuits are filed annually.  Citing Seyfarth’s ADA Title III blog, Labcorp also pointed out that half of the recent record high in ADA cases like its own were filed in California, where plaintiffs may attempt to recover statutory damages under the Unruh Act based on a purported violation of the ADA, even if the plaintiffs were not actually injured.  And while not pertinent to Labcorp’s argument, it is also true that these issues are frequently litigated in the employment context. 

Although the Supreme Court’s ruling was anticlimactic, the question is likely to resurface, and very well may regain traction.  There remains a circuit split over the issue.  And, although he did not cite it in his dissent, Justice Kavanaugh’s majority opinion in TransUnion LLC v. Ramirez—in which the Supreme Court held that every class member must have Article III standing to recover individual damages—was joined by four of his colleagues who are still on the bench. 

In the meantime, employers and other corporate defendants of class actions should continue to consider the issue in crafting their defense strategy.  For example, evidence concerning uninjured class members may reveal that whether members of a proposed class were injured raises evidentiary questions that likely will vary by class member, which individualized inquires may predominate and preclude class certification. 

By: Annette Tyman, Rachel V. See, Andrew L. Scroggins, and Christopher J. DeGroff

Seyfarth Synopsis: On April 23, 2025, President Trump issued an Executive Order entitled “Restoring Equality of Opportunity and Meritocracy.” The Order declares a sweeping new federal policy: “It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” The Order directs all federal agencies, including the EEOC and Department of Justice, to deprioritize any enforcement and litigation regarding disparate impact claims. It further directs agency heads across the federal government to assess all existing regulations, guidance, rules, or orders (including existing consent judgments) that impose disparate-impact liability, and detail steps for their amendment or repeal within 30 days. Beyond the immediate implications for employers facing government litigation or enforcement actions, the Order has significant ramifications in the selection and testing arena, including for AI developers and deployers, as it signals that the federal government under the current administration will not allocate investigation, enforcement, or litigation resources into disparate impact claims against employers using AI tools or other tests. This dramatic shift away from what had been an enforcement priority creates complex interactions with private rights of action under Federal law, state law protections, and local ordinances that continue to recognize disparate impact liability.

Disparate impact liability is a legal theory contending that practices that appear neutral on their face can still be considered discriminatory if they disproportionately and adversely affect members of protected classes. Disparate impact liability is part of existing civil rights laws not just in employment, but in housing, education, credit and lending, government contracting, and other areas. The theory was first established by the Supreme Court in 1971 in Griggs v. Duke Power, 401 U.S. 424 (1971), which held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”. In 1991, Congress amended Title VII to add Section 703(k), which codified how “an unlawful employment practice based on disparate impact” could be established.

The Order and its accompanying fact sheet stake out a different position that characterizes disparate impact theory as fundamentally at odds with constitutional principles. The fact sheet states that disparate impact theory “violates the Constitution’s guarantee of equal treatment for all by requiring race-oriented policies and practices to rebalance outcomes along racial lines” and that it “undermines civil-rights laws by mandating discrimination to achieve predetermined, race-oriented outcomes.” Section 1 of the Order further states, “Disparate-impact liability imperils the effectiveness of civil rights laws by mandating, rather than proscribing, discrimination.”

This leaves employers in choppy waters. The Executive Order directs federal agencies to shift their enforcement priorities and resources away from disparate impact claims, revokes existing Presidential approvals of regulations, and sets in motion further agency rulemaking and guidance to cease the federal government’s actions supporting disparate impact liability. However, the Executive Order does not change Section 703(k), or any of the case law interpreting and applying disparate impact theories of liability over the past five and a half decades, so employers still must contend with disparate impact claims brought by the private plaintiffs’ bar.  

Via the April 23, 2025 Order, the administration has communicated its intent to move away from disparate-impact liability, which includes:

  • Revoking regulations and other guidance that support disparate-impact liability;
  • Deprioritizing enforcement based on disparate-impact liability, including the enforcement of previously entered consent decrees and other agreements;
  • Evaluating whether state laws that incorporate disparate-impact liability theories may be preempted by federal authority; and
  • Issuing guidance to employers about promoting equal access to opportunity without regard to whether an applicant has a college education.

Section 2 of the Order provides the fundamental policy of the administration as it unambiguously states, “it is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”

Section 3 of the Order revokes prior Presidential approvals of regulations applicable to programs and activities receiving federal financial assistance under Title VI, as enforced by the Department of Justice.

Section 4 of the Order directs federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability,” with explicit reference to Title VII employment discrimination provisions and Title VI regulations.

Sections 5, 6, and 7 of the Order together instruct federal agencies to identify and evaluate existing disparate impact frameworks across the federal government, including regulations, guidance, rules, or orders that impose disparate impact liability, then plan for their amendment or repeal.

Section 6 has particular relevance to employers, as it requires the Attorney General and EEOC Chair to assess “all pending investigations, civil suits, or positions taken in ongoing matters . . . that rely on a theory of disparate-impact liability,” And it requires all agencies to “evaluate existing consent judgments and permanent injunctions” premised on the theory. Once identified, agencies are to take “appropriate action” consistent with the Order’s policy. Given the broad language in the Order, “appropriate action” could include dismissing existing litigation in whole or in part, withdrawing amicus briefs, curtailing or ending pending investigations, modifying or halting conciliation agreements and consent decrees, and scaling back other enforcement activity.

The mandate to assess pending investigations and litigation extends to the Department of Housing and Urban Development, Consumer Financial Protection Bureau, Federal Trade Commission, and other agencies enforcing laws such as the Equal Credit Opportunity Act and Fair Housing Act.

Section 7 directs the Attorney General to determine whether federal authorities preempt state laws imposing disparate impact liability and to take “appropriate measures” in response to any identified “constitutional infirmities.”  Section 7 also instructs the Attorney General and EEOC Chair to jointly formulate guidance to employers about promoting equal access to opportunity without regard to whether an applicant has a college education.

Implications for Employers Using Selection Procedures, Including Artificial Intelligence

Section 1 of the Order asserts that disparate-impact liability has “hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits.” This assertion has particular relevance for employers using selection procedures or other processes that use artificial intelligence in their hiring and employment processes. The EEOC’s previous technical assistance on AI systems, issued on May 18, 2023, which has subsequently been revoked, asserted that existing law covered AI systems that produced disparate outcomes.

The Order creates a notable shift in this enforcement landscape, because it makes clear that the federal government will no longer prioritize investigations or enforcement actions based solely on statistical disparities in hiring outcomes. For employers using algorithmic decision-making systems, whether or not these systems are being deployed to make or assist in employment decisions, this policy shift means that the federal government is unlikely to pursue investigations or litigation alleging that the use of algorithms, including AI, has resulted in unlawful discrimination.

However, this backing away from enforcement at the federal level does not does not relieve employers of their obligations. First, disparate impact liability was codified into law by Congress in 1991, and private litigants retain the right to bring disparate impact claims under Title VII regardless of the federal government’s own enforcement priorities. It remains to be seen if the private plaintiff’s bar will pick up this challenge. The EEOC has long touted that, at least as far as disparate impact in hiring is concerned, it is “uniquely positioned to combat systemic hiring discrimination” based on its access to employer applicant and hiring data.  Complex “systemic” discrimination cases present a challenge for private lawyers given the high costs of necessary experts and the inability to track down potential claimants.  Time will tell if private litigants will fill any void created by the EO.

Additionally, several states and local units of government have enacted their own fair employment laws that recognize disparate impact liability, and these laws currently remain unaffected by federal enforcement decisions. For example, disparate impact components are present in local laws like New York City’s Human Rights Law and a new proposed rule from New Jersey’s Division on Human Rights.  States like Colorado and Illinois have already passed new laws intended to address unlawful bias arising out of an employer’s use of AI for employment decisions, and many other state legislatures are considering new laws. Furthermore, multiple groups from industry and civil society have advanced standards and practices for evaluating AI systems that address potential disparate impacts on the basis of sex, race, and other protected characteristics. As noted above, however, this administration will be examining potential preemption of these laws and rules. 

The Shifting Compliance Landscape

The divergence between federal enforcement priorities and existing statutory provisions and case law, and state and local laws, creates significant compliance challenges for employers. Employers and service providers should not interpret the April 23 Order as eliminating all exposure to disparate impact liability claims. Rather, employers and service providers should understand the Order as reflecting a change in federal enforcement priorities and be mindful that it may not extend to state and local laws and enforcement, or private litigants pending additional action, including efforts to “preempt” state or local laws.

Employers using AI-based tools or other selection procedures should continue to closely monitor developments at the federal and state levels, as well as private litigation trends and evolving global action. Employers should also understand how these efforts interact within the broader legal landscape, including but not limited to the Administration’s positions regarding diversity, equity, and inclusion and “merit based” employment practices, in which these federal priority shifts are occurring.

Seyfarth Shaw will continue to monitor these developments and provide updates as they occur. For more information on how these changes may affect your workplace policies and compliance obligations, please contact any of the authors or your Seyfarth attorney.

Seyfarth Shaw LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from their professional advisers.

By: Ridhima Bhalla, Andrew L. Scroggins, and Christopher J. DeGroff

In a March 5, 2025 press release, Andrea Lucas, the Acting Chair of the U.S. Equal Employment Opportunity Commission (EEOC), emphasized the agency’s plans to prioritize holding universities and colleges accountable to prevent the creation of hostile work environments for Jewish employees.

This emphasis follows other directives from the new administration. On February 3, 2025, President Trump issued Executive Order 14188: Additional Measures to Combat Anti-Semitism. Following this directive, the Department of Justice established a Task Force to Combat Anti-Semitism on February 3, 2025, and on March 5, 2025, disclosed that it is investigating the University of California for potential Title VII violations related to alleged antisemitism on campus. Acting Chair Lucas weighed in on the same day, affirming that “the EEOC is committed to partnering with the Department of Justice to stamp out the scourge of anti-Semitism on campus workplaces.”

The latest press release does not represent a dramatic shift in stance at the EEOC, as evidenced by earlier statements and resources cited the release regarding antisemitism in the workplace. In 2023, the EEOC published a fact sheet outlining steps workers should take if they encounter antisemitism in the workplace. The following year, the Commission issued another fact sheet addressing both anti-Muslim and antisemitic discrimination. Additionally, in May 2021, the EEOC adopted a resolution denouncing violence and harassment against Jewish employees.  However, this very public “double down” on the issue should signal to all employers – not just those in the academic community – that the EEOC will be on the lookout for enforcement opportunities to emphasize its commitment in this area.

Employer Implications

The Acting Chair has encouraged individuals who believe they have experienced discrimination or antisemitism at work to file a charge. Although the EEOC can launch investigations without an employee specifically complaining about a particular employer (using a “Commissioner’s Charge,”) the agency relies primarily on employee claims to source its enforcement actions. With this increased exposure and emphasis, we anticipate a rise in charges filed on this basis. Employers are advised to familiarize themselves with the resources provided by the EEOC to understand how the EEOC views employer obligations.

Employers should consider conducting a privileged review of their policies and practices to ensure they include state-of-the-art provisions against religious discrimination. Additionally, implementing regular training sessions is a proactive measure that can significantly reduce the likelihood of legal claims.

By: Taylor Iaculla, Andrew Scroggins, and Christopher DeGroff

Seyfarth Synopsis: In a dramatic policy shift, the U.S. Equal Employment Opportunity Commission (“EEOC”) under Acting Chair Andrea Lucas announced, in a press release, a new focus on unlawful employment practices that favor non-American workers over American workers. The effort purports to address and rectify alleged discriminatory hiring preferences that contribute to illegal immigration, the abuse of legal immigration programs, and adverse impacts on American workers.

Deviating from the EEOC’s prior staunch advocacy for the rights of immigrant workers and previous strategic enforcement priorities—described in Seyfarth’s Shaw’s 2025 Edition of its EEOC-Initiated Litigation Report—the EEOC “vowed” to protect American workers from national origin bias. The policy shift purports to deter illegal migration and reduce the supposed misuse of legal immigration programs by targeting employers who prefer non-American workers over American citizens.

On the day she was confirmed, Acting Chair Andrea Lucas announced that she was prioritizing “protecting American workers from anti-American national origin discrimination”. In a press release on February 19, 2025, Lucas stressed that employers have a myriad of “excuses” to justify their preference for non-American workers including:

  • an effort to reduce labor costs by paying illegal immigrants “under the table” and skirting wage requirements affecting visa holders;
  • to manipulate vulnerable foreign workers they may perceive as more easily exploitable due to their limited knowledge of labor rights and protections;
  • utilizing immigrant workers due to customer or client preferences; and
  • holding biased productivity perceptions on the unfounded belief that foreign workers are more productive or possess better work ethics than American workers.

Acting Chair Lucas emphasized that such practices are not only legally impermissible, but that the EEOC would “rigorously enforce the law to protect American workers from national origin discrimination.”

An example of the EEOC’s shift in priorities is the recent settlement with LeoPalace Guam Corporation. In a consent decree approved by the court on February 18, 2025, the company agreed to pay just over $1.4 million to resolve allegations that it provided less favorable wages, benefits, and conditions of employment to non-Japanese employees, including American nationals, as compared to their Japanese counterparts. In a press release announcing the settlement, Acting Chair Lucas remarked that “federal anti-discrimination laws ensure equal employment opportunity for jobs performed by all workers regardless of national origin” and “unlawful national origin discrimination includes discrimination against American workers in favor of foreign workers.”

This new policy could be particularly problematic in industries with historically large immigrant workforces, such as agriculture, construction, healthcare, hospitality and food service, and meat packing.  If history is a guide, we can anticipate vigorous enforcement to back up this new direction, including lawsuits highlighting a commitment to the administration’s concerns of “anti-American” employment practices. 

Implications for Employers

The EEOC’s announcement amplifies the Trump administration’s ongoing efforts to alter the legal landscape and reverses the EEOC’s prior, longstanding goal of protecting immigrant workers – a group the EEOC has historically designated as a “vulnerable population.” In light of these changes, employers are encouraged to conduct a privileged audit of their hiring and employment practices along with hiring data to ensure compliance with federal anti-discrimination laws. Special attention should be given to policies that unlawfully favor, or appear to favor, non-American workers.