29 | EEOC-INITIATED LITIGATION: 2026 EDITION ©2026 Seyfarth Shaw LLP As noted above, the EEOC’s enforcement of equal pay issues has dwindled in recent years, and has been close to non-existent this year. However, employers should be mindful of potential EEOC-driven litigation in this area, particularly if DEI metrics were a factor in compensation decisions, and, where appropriate, conduct a privileged audit of their pay practices to prevent potential liability. F. Preventing Discrimination In Recruiting and Hiring Over the past decade, the EEOC has spent a considerable amount of its enforcement budget litigating issues that it sees as barriers to recruitment and hiring. Much of its enforcement activity has historically focused on combating hiring practices that could result in age discrimination. But recent years have evidenced a broadening of that focus to claims ranging from sex discrimination, race discrimination, and disability discrimination. Central to many of these enforcement efforts was the EEOC’s reliance on disparate impact liability, a theory that allowed the agency to challenge ostensibly neutral hiring practices— such as pre-employment screening tests and technology-based selection tools—resulting in statistically unequal outcomes for certain groups of individuals. Until recently, the disparate impact theory proved to be a powerful enforcement tool, enabling the EEOC to pursue large, systemic cases involving company‑wide recruiting and hiring practices. In 2026, employers should expect a retrenchment of the EEOC’s strategic efforts to develop and file litigation alleging discrimination in recruitment and hiring in light of Executive Order 14281, which directs all federal agencies to deprioritize enforcement of claims predicated on a disparate impact theory of liability.69 In a May 20, 2025 press release, EEOC Chair Andrea Lucas stated that the EEOC will not pursue investigations or litigation that challenge neutral practices that have unequal outcomes based on protected characteristics on account of the executive order.70 Chair Lucas’s statements reflect a clear and deliberate abandonment of disparate impact as a viable enforcement theory in the recruitment and hiring context. The EEOC’s retreat from disparate impact claims is likely to materially affect both the size and scope of future hiring- and recruitment- related enforcement actions. Without the ability to rely primarily on statistical disparities, the agency faces increased difficulties in investigating and challenging facially-neutral technologybased and algorithmic decision-making processes in recruiting and hiring. Employers should expect the EEOC to narrow and shift its strategic efforts towards litigation involving recruiting and hiring practices that contain an indicia of intentional discrimination—presented as pattern or practice claims—rather than litigation involving recruiting and hiring practices that have a disparate impact on a particular group. 1. Artificial Intelligence and Technology in Recruiting and Hiring Use of artificial intelligence has entered the mainstream, and the application of these tools in the workplace has become increasingly common. Employers now routinely use artificial intelligence to streamline hiring and recruiting. Prior versions of the SEP announced the EEOC’s focus on recruitment and hiring practices and policies that might give rise to discrimination against members of racial, ethnic, and religious groups, as well as women, older workers, and those with disabilities. In the current SEP, the EEOC added far more detail about the types of hiring practices and policies that it intends to scrutinize, and specifically noted that it is interested in employers’ use of artificial intelligence and automated systems in that regard. The Commission has emphasized its intent to investigate whether members of a protected group might be harmed by automated systems used to target job advertisements to particular populations, recruit workers, or aid in hiring decisions. 69 Exec. Order No. 14281, Restoring Equality of Opportunity and Meritocracy, 90 FR 17537 (2025). 70 Message from EEOC Acting Chair Lucas about Opening of 2024 EEO-1 Component Data Collection, (May 20, 2025), https://content.govdelivery.com/ accounts/USEEOC/bulletins/3e1407f.
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