©2026 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2026 EDITION | 30 Specifically, in the SEP, the EEOC has committed to focusing on the use of technology, AI, and machine learning in job advertisements, recruiting, and hiring decisions. The SEP emphasizes an employer’s use of all technology (not just “automated systems”) in hiring and recruitment as an area strategic focus. However, as a practical matter, Executive Order 14281 creates difficulties in investigating and mitigating against technology usage that unintentionally results in unlawful discrimination. The Executive Order directs the EEOC to take all “appropriate action” to eliminate disparate impact claims from its enforcement regime.71 This includes dismissing litigation, withdrawing amicus briefs, ending investigations, and modifying or halting conciliation agreements and consent decrees that advance disparate impact theories. Common tech-based hiring tools, such as algorithmic screen and coding tests, deploy facially neutral policies that appear objective but can contain data points that disproportionately exclude certain groups – thus making those deployments unlawful. Yet, the EEOC cannot pursue these claims and comply with the executive order. To that end, Chair Lucas explicitly stated that the EEOC will “fully and robustly comply” with the executive order.72 Following its pronouncement, the EEOC removed from its website several technical assistance documents and fact sheets that discuss AI compliance with various federal civil rights statutes. For example, the EEOC removed a May 2023 technical assistance document that discussed AI compliance under Title VII and encouraged employers to assess AI tools for adverse impact on protected categories, irrespective of intent. The EEOC also removed a May 2022 technical assistance document issued to ensure that AI tools did not violate the ADA. Similarly, the EEOC withdrew a December 2024 fact sheet discussing wearable technology in the workplace. The EEOC has also eliminated the roles of many in-house statisticians and labor economists, both of which are critical in developing and litigating claims of unintentional discrimination resulting from the use of AI and technology in hiring and recruiting decisions. In addition, on September 15, 2025, the EEOC issued a memorandum directing EEOC field offices to administratively close all investigations of charges alleging disparate impact discrimination by September 30, 2025. Pursuant to that memorandum, the EEOC closed its investigation of charges alleging a disparate impact theory, only and issued a right to sue letter on those charges. On October 20, 2025, a private plaintiff sued the EEOC for closing the investigation of her charge pursuant to that memorandum. In Cross v. EEOC, a former Amazon delivery driver filed a Title VII and ADEA disparate-impact charge alleging Amazon’s strict delivery quotas effectively denied bathroom breaks, which disproportionately affected female workers. The EEOC dismissed the plaintiff’s charge pursuant to the September 15, 2025 memorandum. The plaintiff sued the EEOC under the Administrative Procedure Act, arguing the closure policy is arbitrary, capricious, and contrary to law because Title VII and the ADEA require investigative and conciliatory processes for such claims. Although the lawsuit is in its infancy, it is unlikely that a single-plaintiff case will alter the EEOC’s enforcement priorities – particularly when those priorities are mandated by an executive order. However, the Cross case highlights how EO 14281 and the EEOC’s corresponding enforcement priorities will affect discrimination litigation involving technology in hiring and recruiting. While the EEOC has, historically, focused on recruiting and hiring, the EEOC’s shift away from disparate impact claims creates an opportunity for private litigants to challenge the plethora of electronic tools available to assist employers to find talent in challenging labor markets. However, it is unclear whether the private plaintiff’s bar will fill the void resulting from the EEOC’s absence. In the past, private plaintiffs counsel have been unwilling to champion large scale hiring cases due to cost and challenges identifying potential “victims.” Without agency support, private litigants will be forced to shoulder the burden of costly factual investigations and data assessments to prepare claims for litigation. 71 Exec. Order No. 14281, Restoring Equality of Opportunity and Meritocracy, 90 FR 17537 (2025). 72 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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