DEI AND EEO COMPLIANCE
PREDICTIONS FOR 2026
2025 IN REVIEW
Sharper Focus on DEI-Related Enforcement The EEOC will pay close attention to employer DEI programs. Recent guidance from the agency clearly signals that more investigations are coming, particularly regarding alleged race- or sex-based preferences in hiring, promotions, and training. Consider conducting an audit with counsel to ensure your programs are compliant. Surge in Litigation Challenging DEI Policies
New Administration Initiated Dramatic Shifts to DEI Policy Here are some of the major moves made in 2025: • President Trump issued an executive order in January directing federal agencies to combat “illegal” corporate DEI initiatives. • The President also immediately installed Andrea Lucas – an avowed opponent of illegal DEI – as Acting Chair of the EEOC and ousted two Democratic Commissioners. These two moves set the stage for the agency to focus on DEI programs at private organizations. • For federal contractors, Trump revoked an executive order that mandated race- and gender-based affirmative action requirements for federal contractors and subcontractors through the OFCCP and promoted DEI programs. • The EEOC issued joint guidance with the DOJ in March on what may constitute “unlawful discrimination” related to DEI in the workplace and provided a roadmap for employers. • The DOJ released guidance and suggested best practices in July reminding all federal agencies and recipients of federal funding that programs should not discriminate based on protected characteristics “no matter the program’s labels, objectives, or intentions.” Some States Reaffirmed Diversity Message in Response In February, 16 Democratic state attorneys general issued joint guidance reaffirming their position that workplace DEI initiatives remain legal – and important to the modern workplace. The guidance signed by AGs from traditionally “blue” states directly responded to the Trump administration’s executive orders and other actions taking aim at corporate DEI programs. The Supreme Court Weighed in on “Majority Group” Discrimination SCOTUS unanimously ruled in June that plaintiffs alleging Title VII discrimination are not required to meet a heightened evidentiary standard just because they are part of a majority group. This significant decision, which does away with extra steps for so-called “reverse” discrimination claims, will most likely result in an increase in workplace bias claims.
Expect more litigation challenging DEI programs, including lawsuits filed by employees claiming discrimination against a majority group or alleging unlawful training programs. Be sure to review your content and processes to safeguard against such claims. Companies Will Revamp Their Communications and Activities Many organizations are reassessing both internal and external DEI messaging, particularly since federal agencies may publicly name companies that are perceived to be out of compliance. Expect more employers to revise their programs under broader initiatives promoting positive workplace culture and inclusivity for all employees.
Regina Petty Los Angeles/San Diego Partner, Chief Diversity Officer
Sheila M. Abron Columbia Partner
Raymond W. Perez Birmingham/Columbus/Washington, D.C. Of Counsel
Jennifer B. Sandberg Fort Lauderdale/Atlanta Regional Managing Partner
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