New York Law Journal, “EEOC Enforcement in 2026: A Structural Shift and Strategic Considerations for Employers,” by Keith J. Gutstein, Esq. and Rashmee Sinha, Esq., 2-23-2026

Kaufman Dolowich’s Keith Gutstein, Chair of KD’s Labor and Employment Law Practice Group and Co-Managing Partner of the firm’s Long Island office, and Rashmee Sinha, Long Island Partner, have authored an informative article breaking down some of the Equal Employment Opportunity Commission’s (EEOC) likely enforcement priorities for 2026. 

See the full article below:

Under Chair Lucas, the EEOC has shifted to more aggressive enforcement, targeting race, sex, religious liberty, and DEI-related claims, especially from majority-group employees. It’s rescinded previous guidance, increased investigations, and emphasizes strict compliance. Employers must now carefully document decisions, review policies, and navigate overlapping laws to stay compliant in this evolving enforcement landscape.

By Keith Gutstein & Rashmee Sinha, Kaufman Dolowich LLP

February 23, 2026

For nearly 60 years, the Equal Employment Opportunity Commission has served as the principal federal agency charged with enforcing Title VII of the Civil Rights Act of 1964 and its companion statutes. Throughout most of that history, changes in enforcement emphasis have accompanied new administrations, but the current shift in priorities is notable for both its pace and its scope.

Under Chair Andrea Lucas, nominated by President Trump in November 2025 and reconfirmed by the Senate in July of that year, the EEOC has embarked on a fundamental reorientation of its enforcement priorities—directing its investigative and litigation resources toward what it characterizes as “unlawful DEI-motivated race and sex discrimination,” expanding enforcement of religious liberty protections, and narrowing its interpretation of sex-based protections to what it terms the “biological and binary reality of sex.” These are not marginal adjustments. They raise significant practical questions for employers operating nationally, and they demand a reassessment of compliance strategies, documentation practices, and internal policies.

A Restored Quorum and Consolidated Authority

Understanding the current environment requires appreciating not only what the EEOC intends to do, but the institutional capacity it now possesses. For much of 2024 and 2025, the Commission operated without a quorum, constraining its ability to authorize systemic litigation, approve major settlements, or issue binding policy guidance.

That constraint was removed in October 2025 with the confirmation of Commissioner Brittany Panuccio, establishing a 2-1 Republican majority. The significance of this alignment was demonstrated immediately: in January 2026, the Commission voted along party lines to overhaul its voting protocols, granting Chair Lucas authority to control which matters reach the full body, and requiring Commission approval for all systemic cases involving fifteen or more claimants.

The Commission also rescinded the Biden-era Enforcement Guidance on Harassment in the Workplace. The EEOC now has both the political will and the procedural machinery to move decisively—and employers should not assume that diminished staffing levels will translate into diminished enforcement activity.

‘Ames v. Ohio’ Department of Youth Services: The Doctrinal Foundation

The Supreme Court’s unanimous June 2025 decision in Ames v. Ohio Department of Youth Services provides the doctrinal foundation for much of the EEOC’s current posture. In Ames, the court eliminated the “background circumstances” test: a judicially created doctrine that had required majority-group plaintiffs to satisfy a heightened evidentiary standard to establish a prima facie case under Title VII.

Writing for a unanimous court, Justice Jackson held that Title VII “draws no distinctions between majority-group plaintiffs and minority-group plaintiffs” and that Congress “left no room for courts to impose special requirements on majority-group plaintiffs alone.” Justice Thomas, concurring, went further, questioning whether the McDonnell Douglas burden-shifting framework itself remains a “workable and useful evidentiary tool”—a signal that may invite future challenges to the architecture of disparate-treatment litigation itself.

The import of Ames cannot be overstated. Combined with Chair Lucas’s December 2025 social media video directly soliciting complaints from white male employees, the doctrinal and institutional conditions are now aligned to produce a meaningful increase in majority-group Title VII claims.

DEI Under the Microscope

The EEOC’s position on workplace DEI initiatives has been stated with increasing specificity: employment actions motivated “in whole or in part” by race, sex, or other protected characteristics violate Title VII, regardless of whether undertaken in pursuit of diversity objectives. In Chair Lucas’s formulation: “There is no ‘diversity’ exception.”

This posture has moved well beyond rhetoric. In November 2025, the Commission filed its first known subpoena enforcement action in a DEI-related investigation, against a major insurance and financial services company; in February 2026, a similar action followed against a prominent athletic apparel company. The agency has also signaled it will use web-archive searches to identify employers that merely rebranded DEI programs without substantive changes.

For New York employers, this creates a particularly complex compliance environment. Consider an employer that eliminates a mentorship program designed to broaden its candidate pipeline after receiving an EEOC inquiry into whether the program favors participants based on race or sex. If the elimination of that program results in a measurable decline in hiring or promotion rates for a protected group, that outcome could support a disparate impact claim under the NYSHRL. On Dec. 19, 2025, Governor Kathy Hochul signed Senate Bill S8338, amending Executive Law §296 to expressly codify disparate impact liability, providing that an unlawful discriminatory practice may be established by a practice’s discriminatory effect, even absent discriminatory intent.

That amendment was a direct response to the Trump administration’s April 2025 Executive Order directing the EEOC to cease pursuing disparate impact claims under Title VII. The practical result is that an employer that dismantles its diversity infrastructure to avoid federal exposure may simultaneously increase its vulnerability under state law. This tension demands sophisticated navigation, not reflexive retreat.

Religious Liberty: The Post-Groff Enforcement Surge

The Supreme Court’s 2023 decision in Groff v. DeJoy replaced the long-standing “de minimis” standard for religious accommodations with a requirement that employers demonstrate “substantial” burden—demanding a caliber of factual analysis and contemporaneous documentation many employers have not historically produced.

The EEOC’s enforcement has been aggressive. The Commission’s $21 million settlement with Columbia University in July 2025 resolving allegations of antisemitic harassment stands among the largest in agency history. Enforcement action against the University of Pennsylvania followed in November 2025, and investigations have targeted private employers in the technology, automative services and hospitality sectors. The breadth of this activity signals that religious liberty is a central pillar of the EEOC’s current institutional identity, and employers should expect searching inquiry of accommodation denials, complaint-response timelines, and the practical effectiveness of anti-harassment policies.

Strategic Considerations for Employers

First, audits of diversity-related programs should be conducted under attorney-client privilege, distinguishing between programs employing neutral, merit-based criteria and those tying employment decisions to protected characteristics.

Second, religious accommodation processes require immediate review. Under Groff, each request should generate a documented, individualized assessment of the specific operational burden, supported by concrete evidence rather than generalized assertions of inconvenience.

Third, anti-harassment policies—particularly addressing religious harassment and antisemitism—must be reviewed for practical effectiveness, not just substantive adequacy. The Columbia and Penn enforcement actions make clear the EEOC will not credit policies that exist on paper but fail in implementation.

Fourth, employers should prepare for increased majority-group discrimination claims by ensuring that all employment decisions are consistently documented on merit-based grounds—the most effective defense against claims from any direction.

Finally, New York employers should conduct an explicit analysis of how their practices comply with the distinct requirements of federal, state and local law. The assumption that compliance with one framework ensures compliance with all others has never been safe, and in the current environment, is affirmatively imprudent.

Conclusion

The EEOC under Chair Lucas has charted a course that represents a significant departure in the agency’s enforcement history. The employers best positioned to navigate this environment will be those that approach compliance as an ongoing discipline requiring rigorous documentation, informed legal judgment, and the capacity to hold multiple, sometimes conflicting legal obligations in view simultaneously. The civil rights enforcement landscape is being rewritten in real time. The question for employers is not whether to adapt, but how thoughtfully they choose to do so.

Keith Gutstein is co-managing partner of Kaufman Dolowich’s Long Island office and Chair of the firm’s Labor and Employment Practice Group. Rashmee Sinha is a partner in the firm’s Long Island office and a member of the Labor and Employment Practice Group.

Reprinted with permission from the Feb. 23, 2026 edition of “New York Law Journal” © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com. “