©2026 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2026 EDITION | 6 The EEOC released its current SEP on September 21, 2023, when the agency was still under Democratic leadership, to cover fiscal years 2024-2028.7 It may only be revised or withdrawn by a majority vote of the Commission operating with a quorum, a fact that is pointedly highlighted at the top the webpage that hosts the information since soon after the Trump administration began.8 While the document has not been formally changed, how the enforcement priorities are construed has changed in notable ways. Moreover, now that the EEOC’s quorum has been restored under the Republican leadership of Chair Lucas, the agency is positioned to formally modify the 2024-2028 SEP, and likely will do so to reflect the new GOP majority’s strategic priorities. Indeed, when the current SEP was issued, thenCommissioner Lucas voted against it.9 She further made a point to note as Acting Chair that she could not unilaterally remove or modify documents such as the SEP based on her authority in that capacity.10 The new quorum may change the existing SEP’s focus areas in significant ways to align with the actual enforcement trends, such as by shifting away from protecting certain groups such as immigrant workers and toward addressing alleged employment practices that favor non-American workers over American workers, potentially resulting in an updated version of the document that looks quite different than it does today. 2. Particular FY 2026 Strategic Enforcement Priorities The EEOC’s current SEP is focused on six different strategic enforcement priorities: (1) eliminating barriers in recruitment and hiring; (2) protecting vulnerable workers from underserved communities; (3) addressing selected emerging and developing issues; (4) advancing equal pay for all workers; (5) preserving access to the legal system; and (6) preventing and remedying systemic harassment. Importantly, these priorities are not mutually exclusive. The interpretation of those priorities has changed under the Trump administration, sometimes in dramatic fashion. Eliminating Barriers In Recruitment and Hiring. The first strategic enforcement priority is eliminating barriers in recruitment and hiring. The EEOC’s focus within this priority has been to address recruiting and hiring practices that “discriminate on any basis unlawful under the statutes EEOC enforces, including sex, race, national origin, color, religion, age, and disability.” The EEOC has spent a considerable amount of its enforcement budget litigating issues that it sees as barriers to recruitment and hiring. In recent years, there have been a number of judicial decisions involving the EEOC’s attempts to combat discrimination, including the use of pre-employment screening tests. The FY 2024-2028 SEP added far more detail about the types of hiring practices and policies to be scrutinized. For example, prior SEPs described the EEOC’s intention to prevent steering members of protected groups into specific (often less desirable) jobs. The FY 2024-2028 SEP goes further to explain that the EEOC also will be examining whether employers are segregating workers in jobs, or by job duties, based on membership in a protected group. Other areas of focus include examining practices that may limit access to work opportunities, such as advertising jobs in a manner that excludes or discourages some protected groups from applying, or denying training, internships, or apprenticeships; scrutinizing whether employers are denying opportunities to move from temporary to permanent roles, including when permanent positions are available; and investigating whether adverse impact results from the use of technology, AI, and machine learning used in job advertisements, recruiting, and hiring decisions. The EEOC has, historically, focused on recruiting and hiring in part because private plaintiffs’ counsel have been unwilling to champion large scale hiring cases due to cost and challenges identifying potential victims. In particular, the EEOC has scrutinized recruiting and hiring processes to determine whether 7 U.S. Equal Employment Opportunity Commission, Press Release: EEOC Releases Strategic Enforcement Plan (Sept. 21, 2023), https://www.eeoc. gov/newsroom/eeoc-releases-strategic-enforcement-plan. 8 U.S. Equal Employment Opportunity Commission, Strategic Enforcement Plan Fiscal Years 2024 – 2028, https://www.eeoc.gov/strategicenforcement-plan-fiscal-years-2024-2028 (“This Strategic Enforcement Plan was approved by the Commission on September 18, 2023, by a 3-2 vote. Modification requires a vote of the Commission.”), 9 U.S. Equal Employment Opportunity Commission, Press Release: Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace (Jan. 28, 2025), eeoc.gov/newsroom/removing-gender-ideology-and-restoring-eeocs-role-protecting-women-workplace. 10 Id.
RkJQdWJsaXNoZXIy OTkwMTQ4