9 | EEOC-INITIATED LITIGATION: 2026 EDITION ©2026 Seyfarth Shaw LLP Advancing Equal Pay for All Workers. The fourth strategic priority is advancing enforcement of pay discrimination laws, including the Equal Pay Act and Title VII. We cover the key focus areas relative to this strategic priority in Part II(E). In the past, the EEOC’s primary focus has been combating discrimination in pay based on sex. The FY 2024-2028 SEP revises this priority to make clearer that it intends to focus on pay discrimination based on any protected category. The SEP departs from prior versions in two other notable ways. First, it includes a statement indicating that the EEOC will not depend on charges from members of the public, but will use its authority to initiate directed investigations and Commissioner’s charges in order to facilitate enforcement. Second, the EEOC states its intent to challenge practices that it perceives may impede equal pay, or contribute to pay disparities, including secrecy policies, discouraging or prohibiting workers from sharing pay information, and “reliance on past salary history or applicants’ salary expectations to set pay.” The partnership between the EEOC and the Department of Labor that was announced in 2023, provides the agency an additional source for information that could fuel investigations in this area. We cover the Memorandum of Understanding setting forth this partnership in Part II(A)(3). That said, the focus on equal pay appears at this time to be in name only, as enforcement actions are uncommon. In FY 2025, the EEOC did not file any complaints alleging violations of the Equal Pay Act. Preserving Access to the Legal System. The fifth strategic priority is preserving access to the legal system, and it is largely unchanged from the prior version on this topic. The focus within this priority is on policies or practices that discourage or prohibit individuals from exercising their rights, including any policies that deter or prohibit filing charges with the EEOC or cooperating freely in EEOC investigations, as well as, according to the EEOC, “overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements,” failure to maintain applicant and employee data, and retaliatory practices that dissuade employees from exercising their rights. This objective has historically been reflected in the EEOC’s aggressive assertion of retaliation claims against employers allegedly obstructing employees’ efforts to participate in EEOC proceedings or otherwise oppose discrimination. The EEOC’s Enforcement Guidance on Retaliation states that retaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in protected activity that is in furtherance of Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act, or Title II of the Genetic Information Nondiscrimination Act. Retaliation claims premised on EEO-related activity are comprised of three elements: (1) protected activity through “participation” in an EEO process or “opposition” to discrimination; (2) materially adverse action taken by the employer; and (3) the requisite level of causal connection between the protected activity and the materially adverse action. Of the 93 cases that were filed by the EEOC in FY 2025, 33 cases – or roughly 35% – involved retaliation allegations, signaling the EEOC’s continued interest in pursuing such claims and in turn, the interests of employees’ ability to pursue their rights under the anti-discrimination laws. In the past year, the EEOC has added a new course of action consistent with this section of the SEP: publishing guidance documents advising the public of their right to file certain types of charges. For example, in March 2025 the EEOC released a one page document titled “What To Do If You Experience Discrimination Related to DEI at Work,” explaining what may constitute DEI-related discrimination, who can be affected, and how to contact the EEOC to report such a claim.14 In November 2025, the EEOC released another one-page document titled “Discrimination Against American Workers Is Against The Law,” explaining different forms of potential discrimination against American workers and how to file a charge in the event of a violation.15 These topics are discussed further in Section C.2. 14 https://www.eeoc.gov/what-do-if-you-experience-discrimination-related-dei-work. 15 https://www.eeoc.gov/discrimination-against-american-workers-against-law.
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