37 | EEOC-INITIATED LITIGATION: 2026 EDITION ©2026 Seyfarth Shaw LLP Finally, in November 2025, the EEOC regained a quorum with a Republican majority. With a quorum restored, the Commission may now pursue significant policy changes such as rescinding the Biden-era guidance and regulations.109 Under the Biden-era Enforcement Guidance, discrimination based on sexual orientation or gender identity includes physical assault, “outing,” or other harassing conduct toward individuals because they “do not present in a manner that would stereotypically be associated with that person’s sex.” 110 Harassing behavior under this covered basis includes the repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering), or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.111 Though the guidance was in place throughout 2025, the EEOC largely pulled back from enforcing such issues. At its second meeting of 2026, with a quorum restored, the Commission voted 2-1 to rescind the 2024 Enforcement Guidance on Harassment in the Workplace. In a press release announcing the decision, Chair Lucas noted that “[r]escinding this guidance does not give employers license to engage in unlawful harassment,” and “Federal employment laws against discrimination, harassment, and retaliation, and Supreme Court precedent interpreting those laws, remain firmly in place.” 112 Democratic Commissioner Kalpana Kotagal warned that broader changes may target regulations regarding EEO-1 data collection, guidance regarding affirmative action and disparate impact, and recission of the agency’s strategic enforcement plan for fiscal years 2024-2028. The restored quorum also allows the EEOC to bring large-scale systemic litigation, and the majority’s stated priorities are likely the types of cases EEOC will pursue. Employers are urged to stay proactive as the commission enters a period of aggressive regulatory and litigation activity.113 H. EEOC’s Emphasis on Combatting Systemic Discrimination Systemic discrimination refers to biases that are “built into systems, originating in the way work is organized” and “refers to structures that shape the work environment or employment prospects differently for different types or workers.” 114 The EEOC defines systemic cases as “pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location.” 115 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.” 116 The EEOC’s lack of quorum in FY 2025 significantly limited its ability to bring large scale systemic discrimination lawsuits, as such claims require a Commission quorum vote. Indeed, the EEOC filed just five systemic lawsuits in FY 2025—a steep decline from prior years. They include: EEOC v. DHL Supply Chain (USA), Case No. 2:25-cv-02055 (W.D. Tenn. 2025): In a Title VII action, the EEOC alleges since at least October 2021, the defendant subjected a class of female employees working at its Tennessee facilities to unlawful employment practices, including ongoing unwelcomed sexual harassment that resulted in a sexually hostile work environment. 109 Kalpana Kotagal Warns EEOC GOP Majority Will Move Quickly on Harassment Guidance, Law360 Employment Authority (Nov. 14, 2025), https://www.law360.com/employment-authority/discrimination/articles/2410827. 110 Id. at 17. 111 Id. 112 U.S. Equal Employment Opportunity Commissions, EEOC Commission Votes to Rescind 2024 Harassment Guidance (January 23, 2026), https://www.eeoc.gov/newsroom/eeoc-commission-votes-rescind-2024-harassment-guidance. 113 Id. 114 Systemic Enforcement at the EEOC, https://www.eeoc.gov/systemic-enforcement-eeoc 115 Systemic Enforcement at the EEOC, https://www.eeoc.gov/systemic-enforcement-eeoc 116 EEOC Strategic Plan 2022-2026, https://www.eeoc.gov/eeoc-strategic-plan-2022-2026
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