When President Trump signed his Executive Orders targeting Diversity, Equity, and Inclusion (DEI) practices in January 2025, organizations across the country began reassessing their diversity initiatives in anticipation of an aggressive enforcement posture. Early signals suggested that the administration might identify and publicly target “egregious” DEI practitioners, but such lists never materialized. And for much of 2025, the administration’s enforcement focus appeared to rest primarily on higher education rather than on corporations writ large.
That dynamic has shifted meaningfully in 2026. Recent actions by both the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) make clear that the administration is now backing its prior statements with concrete enforcement activity directed at corporate DEI programs. For companies with public DEI commitments, identity‑based employment programs, and/or federal contracts, the risk landscape looks materially different than it did a year ago.
Most recently, on February 26, 2026, EEOC Chair Andrea Lucas sent a letter to a select group of corporate leaders—including CEOs, general counsels, and board chairs—reminding them of their obligations under Title VII amid heightened scrutiny of DEI initiatives, regardless of how those initiatives are branded. The key message of the letter is procedural but consequential: the EEOC has regained a quorum, enabling it to deploy its full range of enforcement tools to challenge DEI policies. With a quorum restored, the agency can approve major litigation, issue Commissioner‑initiated charges, rescind longstanding guidance, and promulgate new binding interpretations of federal antidiscrimination law.
Corporations are therefore on notice that the EEOC is positioned to pursue enforcement actions consistent with its 2025 “informal” guidance documents—“What to Do If You Experience DEI Discrimination Related to DEI at Work” and “What You Should Know About DEI-Related Discrimination at Work.” The letter also cites the Supreme Court’s decision in Ames v. Ohio Department of Youth Services (2025), which the agency reads as reinforcing Title VII’s protection of individuals regardless of whether they belong to a historically underrepresented group. Taken together, these developments signal a renewed emphasis on so‑called “reverse discrimination” theories and a willingness to test them through litigation. (We covered the EEOC’s 2025 guidance and the Ames decision previously.)
The DOJ has likewise emphasized DEI as an enforcement priority, including through the use of nontraditional tools. In remarks made at a Federal Bar Association event, Deputy Assistant Attorney General Brenna Jenny framed DOJ’s approach not as opposition to diversity efforts per se, but as an effort to characterize common corporate DEI practices as discriminatory under existing law. DAAG Jenny highlighted not only hiring and promotion decisions, but also practices such as mandatory diverse‑slate requirements and race‑ or sex‑based executive training and mentoring programs. She also directly challenged the assumption that DOJ would face difficulty satisfying the elements of an FCA claim in cases targeting DEI programs at federal contractors—a topic we have covered previously.
Beyond rhetoric, both agencies have recently taken concrete steps that underscore their willingness to commit resources to DEI‑related enforcement. In February, the EEOC sued Coca-Cola, alleging that the company’s women-only networking retreat excluded male employees and constituted sex discrimination under Title VII. EEOC Chair Lucas took to LinkedIn to characterize these kinds of programs as “new girls clubs” akin to the “old boys clubs” and “whites only” clubs of the past.
Earlier in February 2026, the EEOC also moved to enforce a subpoena against Nike in an investigation premised not on specific allegations of discriminatory acts, but on the company’s public DEI commitments as reflected on its website and in regulatory filings. The probe, which was originally initiated by Lucas in mid‑2024, before she became Chair, alleges that Nike’s efforts to meet publicly stated diversity targets resulted in systemic discrimination against white and male applicants and employees. For companies that disclose workforce diversity metrics or articulate aspirational diversity goals, the Nike matter sends a clear signal: public DEI statements and ESG reporting may be treated as circumstantial evidence of intent or of an alleged “pattern or practice” of discrimination.
The DOJ has also advanced a more sweeping legal theory through litigation. In January 2026, DOJ sued the State of Minnesota over its statutory affirmative action regime, which requires consideration of affirmative action goals in all staffing decisions and obligates hiring managers to justify the selection of “non‑affirmative candidates” when demographic benchmarks are unmet. The complaint argues that the Supreme Court’s decisions in United Steelworkers v. Weber and Johnson v. Transportation Agency, which have long permitted narrowly tailored, remedial affirmative action programs, were wrongly decided because they relied on the “spirit” rather than the text of Title VII. The DOJ contends that subsequent Supreme Court jurisprudence has rejected that interpretive approach, thereby eliminating the doctrinal foundation for voluntary, race‑ and gender‑conscious employment programs. If successful, the litigation could dismantle the Weber‑Johnson framework that has governed affirmative action in employment for nearly half a century.
Whether courts will ultimately embrace DOJ’s and the EEOC’s evolving enforcement theories remains an open question. One potential constraint is the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, which eliminated judicial deference to agency interpretations of law and requires courts to exercise independent judgment when evaluating statutory meaning. As a result, the EEOC and DOJ will need to defend their interpretations of Title VII on the merits, rather than relying on deference to agency guidance. While this limits agencies’ ability to reshape the law through interpretation alone, it also introduces uncertainty for employers facing novel theories that may survive early motion practice.
Looking Ahead
What is no longer uncertain is whether enforcement is coming. Enforcement is here. The DOJ and EEOC are actively pursuing matters based on specific DEI programs and on high‑level public DEI commitments, and they are doing so using both traditional antidiscrimination theories and newer tools such as the False Claims Act. At the same time, the administration is seeking to revisit—and potentially overturn—longstanding interpretations of Title VII that have structured employer compliance for decades.
Companies should be monitoring these developments closely as part of their ongoing evaluation of DEI‑related risk. Organizations with public‑facing DEI commitments, affirmative action plans, federal contracts, or identity‑based employee programs should be assessing those initiatives now, in consultation with counsel, against a legal backdrop that is meaningfully more complex—and more contested—than it was twelve months ago.
