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This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2026, authored by attorney Daveante Jones. The series was originally featured in Arkansas Business.
One of the Trump administration’s top priorities has been addressing “illegal” diversity, equity and inclusion (DEI) programs focused on race and gender-conscious efforts. A major shift in the legal landscape has followed for both public and private employers throughout the year.
And more changes are likely to come in 2026.
In January 2025, Trump signed executive orders seeking to eliminate DEI programs within the federal government. Executive Order (EO) 14151, titled “Ending Radical and Wasteful Government DEI,“ required the federal government and its agencies to eliminate DEI programs deemed discriminatory among other things. Another order, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” eliminated affirmative action requirements for federal contractors and prohibited private organizations from conducting DEI programs for jobs created by federal contracts.
The Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) then jointly released a technical assistance document in March 2025 with insight and direction on “illegal” DEI initiatives and programs and their enforcement stance. Along with that, the EEOC released an additional technical assistance document with questions and answers covering the process for asserting a discrimination claim and the scope of protections under Title VII related to DEI programs.
Importantly, the guidance identified concrete examples of what the EEOC considers to be unlawful DEI-related workplace discrimination, including:
- Quotas and other “balancing” efforts.
- Disparate treatment in various aspects of employment, including the selection of interviewees and hiring/firing, promoting/demoting, or compensating employees; offering fringe benefits; and providing access to training, mentoring or sponsorship programs, or fellowships.
- Limiting membership in workplace groups, such as affinity groups, or separating employees into groups based on protected traits when administering DEI or other trainings, even if the content is the same.
- Unlawful harassment during DEI training — harassment that results in an adverse change to a term, condition, or privilege of employment, or is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive.
- Retaliation for objecting to or opposing employment discrimination related to DEI, participating in employer or EEOC investigations, or filing an EEOC charge. “Reasonable opposition to a DEI training may constitute protected activity” that would prohibit employer retaliation.
Courts saw changes as well. Particularly, in June 2025, the U.S. Supreme Court issued a decision distinguishing the concept of “reverse” discrimination and holding that the evidentiary burden for a majority-group plaintiff to establish a Title VII claim is the same burden applicable to a minority-group plaintiff.
Later in the year — at the direction of EO 14281, titled “Restoring Equality of Opportunity and Meritocracy,” — the EEOC issued the Disparate Impact Rule, bringing about the end of EEOC investigations of disparate-impact charges. This was a legal doctrine often utilized by minority-group plaintiffs seeking recourse for alleged discrimination because of a neutral policy or practice resulting in adverse effects on their employment or chances of employment on a class action basis.
While the EEOC has been actively educating employers on its stance against DEI, one of the more major developments came in October 2025. Specifically, the Trump administration re-established a quorum for the EEOC. Without the quorum, the EEOC was limited in what it could do to act on the education and documents it issued earlier in the year because it was unable to formally issue new regulations, rescind existing regulations, or pursue large-scale litigation. The expectation is that the EEOC will move forward on several initiatives including officially rolling back EEOC anti-harassment guidance issued during the Biden administration related to gender ideology, enforcing antidiscrimination laws to ensure American workers are protected from national origin discrimination, and holding employers accountable for DEI programs and initiatives.
Consistent with that expectation, the EEOC filed a petition in the U.S. District Court for the Eastern District of Washington on November 20, 2025, to enforce a subpoena against Northwestern Mutual Life Insurance in connection with the EEOC’s investigation into an employee’s charge of discrimination. One of the major allegations in the charge is that the employee and those similarly situated to him have been discriminated against because of the company’s DEI policies and programs. The subpoena seeks, among other things, information related to the operation of the company’s DEI policies and programs.
The Bottom Line
Employers should be on high alert when it comes to DEI in 2026. Potential steps to take include:
- Audit hiring and recruitment practices for any preferences based on any protected characteristics.
- Review EEO policies and training as well as any policies or training that promote diversity, equity, and/or inclusion.
- Fine-tune any reporting mechanisms for complaints regarding discrimination and retaliation.
- Coach leaders regarding lawful considerations for hiring and other employment decisions.
- Keep in touch with legal counsel as the law continues to shift.