The National Industry Liaison Group (NILG) recently held a “Through the Looking Glass” webinar analyzing what it called “the most consequential year in employment law in over 60 years”—as well as discussing the likely shape of federal activity in 2026 and beyond. In this article, Affirmity’s VP of Sales, Kim Hendon, reports on some of the most interesting insights and points of speculation from the panel, and their implications for your non-discrimination programs and employee engagement initiatives.
1) Expect Plenty of EEOC Activity in Early 2026
With Andrea Lucas’ full appointment as EEOC chair and the establishment of a Republican quorum thanks to the confirmation of Brittany Panuccio as a commissioner, we can expect the EEOC to pursue its objectives more aggressively. Furthermore, as noted by panelist Nita Beecher, Of Counsel to Fortney & Scott, LLC, with the EEOC and the other enforcement agencies currently only receiving funding until the end of January, it’s likely that we’ll see a flurry of activity in January specifically.
Beecher also noted that the agency had already launched into subpoena action against Northwestern Mutual over its refusal to provide DEI information and against the University of Pennsylvania over anti-Semitism. She suggested that these were characteristic of likely immediate targets, cautioning: “when the EEOC wants something, their subpoena authority is very, very strong.”
Another well-known EEOC (and DOL) initiative, Project Firewall, was also highlighted. Project Firewall focuses on enforcement around the H1-B visa process and has a stated goal of “safeguarding the rights, wages, and job opportunities of highly skilled American workers by ensuring employers prioritize qualified Americans when hiring workers.” As the news release announcing the initiative notes, “the Secretary of Labor will personally certify the initiation of investigations for the first time in the department’s history.” Beecher also told organizations to expect revisions to harassment guidance and the Pregnant Workers Fairness Act (PWFA).
Looking further out, the panel discussed the possibility of Lucas’ EEOC amending or ending EEO-1 Reporting—the panel felt it was “highly likely” that EEO-1 could be targeted for elimination in 2027.
Immediate elimination in 2026 is less likely due to the presence of several moving parts. Specifically, in order for this to happen:
- Congress would need to amend Section 709(c) of Title VII to eliminate EEO‑1 reporting, or alternatively, the president could issue new executive orders altering federal contractor reporting obligations.
- The EEOC and the Office of Management and Budget (OMB) would need to finalize rule changes, complete Paperwork Reduction Act (PRA) processes, and withdraw PRA clearance.
2) Title VII Violation via DEI Is the Focus, Rather Than “Illegal DEI”
After the wave of executive orders early in 2025, practitioners found themselves grappling with the concept of “illegal DEI,” and trying to draw lines in terms of what they could and couldn’t do without getting in trouble. The panel felt that as the dust starts to settle, there’s a little more clarity available in the form of DOJ and EEOC guidance—but it felt that the administration is yet to adequately define and operationalize the term.
Referring to litigation in Illinois, David Cohen, President of DCI Consulting observed:
“Twice the DOJ has gone before a judge, and the judge has asked the DOJ to define illegal DEI—What is it? What can you do, what can’t you do? As of last month, the judge said, “let me just try to give you some examples—is this illegal DEI?” And the Justice Department lawyers are going, “we’re not in a position to answer that.” And the judge is saying,” well, if you can’t answer that, how is an employer supposed to certify?””
He then pointed to EEOC Chair Andrea Lucas’ recent appearance on The DC Insider – Employer Update podcast in which she seemingly distanced enforcement from the “illegal DEI” terminology. Lucas had said: “What we are talking about is illegal race and sex discrimination and other forms of unlawful discrimination that might arise from a program that one could label as DEI”. She continued by stating: “it doesn’t matter what the label was or why they thought they were doing this. What matters is, did it break long-standing civil rights laws?”
Cohen closed out this section with a slide on what he believes constitutes “illegal DEI”. This includes:
- Quotas
- Preferences
- Set-asides
- Any selection procedure that supersedes merit
- Exclusion based on protected characteristics
- Illegal harassment
However, he pointed out the irony that these were all aspects specifically called out in the regulations under Executive Order 11246. Observing that the OFCCP has recompensed 25,000 whites and males for alleged discriminatory employment practices since 2020, Cohen suggested that the administration has likely “realized they threw the baby out with the bathwater”.
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3) “Equal Employment Opportunity Is Cool Again”
Brian Barger, Partner/Attorney at McGuireWoods LLP, discussed how risky DEI initiatives had the capacity to “turn things that are good and well-intended, into things that sort of cross the line,” and offered the following advice to employers:
“I think you need to think about your structure. You don’t necessarily need to get rid of DEI. But the question really is, that channel within your organization, how do people review it? How do people sort of implement policies?”
David Cohen then offered his thoughts on the shift back towards equal employment opportunity:
“What we’re starting to see is that EEO is cool again. If you are employing non-discriminatory employment practices, that’s merit-based hiring. And so what I recommend to my clients is to decouple EEO—that is, lawful and legal compliance—from DEI.”
We would frame this “decoupling” in terms of recommending that organizations move away from blending compliance and DEI together, rather than interpreting it as a need for an outright divorce of the two functions. We continue to believe that DEI teams and compliance teams have a great deal to offer each other, and that they should exist as complementary functions, each with the shared goal of non-discrimination and equal opportunity. The collaboration between these teams should include:
- Regular joint reviews of policies, procedures, and program design
- Checks and balances to ensure initiatives do not cross into quotas, preferences, or exclusionary practices
- Continuous alignment with EEO law, especially as enforcement priorities shift
Ultimately, EEO provides the guardrails, while DEI drives culture. Together they can coexist—but only if compliance is treated as a core requirement, not an afterthought.
4) The Outlook Remains Uncertain for the OFCCP
Considering that the NILG was originally formed specifically to improve communications between the OFCCP and federal contractors (and subcontractors), the fate of that once pivotal agency was naturally a point of discussion for the panel. However, beyond the facts of its current jurisdiction—Section 503 and VEVRAA—and the pre-shutdown appointment of Ashley Romanias as director, little is certain.
In fact, David Cohen opined that “Anybody who tells you that they know what’s going on with the OFCCP is lying to you” before stating that he extended this to both Congress and even the OFCCP itself. He observed that while the House labor committee zeroed out the OFCCP budget this summer, the Senate committee slated $105 million to fund it. Cohen spoke further on apparent mismatch in visions for the agency, saying:
“I’ve talked to a bunch of lobbyists and folks here in D.C. Nobody seems to understand why the Senate is fully funding it. At some point, a decision on the budget will have to be made. Does the OFCCP get money? As we know, there was some chatter about taking 503 and giving it to EEOC and VEVRAA over to VETS. That requires congressional approval. My understanding is that’s off the table. Labor is going to keep 503 and VEVRAA, and most likely there will be an OFCCP headed up by Ashley to do 503 and VEVRAA investigations and potentially audits.”
In conclusion, he conceded, “Time will tell, that’s all I can tell you.”
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5) The Political Pendulum May Swing Back, But Some Changes Are Likely to Stick
Looking to the longer term, the potential for the drastic shifts of the current administration to be undone was discussed, with Brian Barger observing that it was “the big question I’ve had since January, and continue to get pretty much every week.” He described the shifts as “pendulum swings, legally, politically, and culturally” and stated his expectation that things will “move back more towards the center”. David Cohen concurred, stating that “EEO, and thoughtful and legal DEI are just good and smart business practices. You can’t have discriminatory employment practices and be merit-based.”
However, the panel also stressed that some of the current administration’s efforts are likely to remain in place regardless of where the balance of power shifts with successive governments.
Particularly, Barger highlighted the 2024 Supreme Court case, Muldrow v. City of St. Louis, which essentially lowered the standard for the degree of harm an employee must experience to claim discrimination under Title VII of the Civil Rights Act from “material” or “significant” harm to “some” harm. Barger posited that even had there been a Democratic victory at the last election, Muldrow would still have facilitated a similar wave of anti-DEI legal action rooted in Title VII discrimination.
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6) What Organizations Need to Do in 2026, According to the Panel
In closing, the panel suggested some homework for the start of 2026, designed to address many of the key points above. This included:
- Performing a privileged self-audit of DEI and other core employment procedures (and on-the-ground actions) for federal, state, local, and global compliance, as applicable.
- Conducting a privileged analysis of how applicant and employee EEO data is sought, collected, shared, and utilized (and additionally, the timing of those processes).
- Reassessing the status of your organization’s public DEI and affirmative action descriptions, including in:
- Internal KPI and bonus award materials
- Award submissions and third-party compilations
- SEC and other filings
Nita Beecher cited Andrea Lucas’ letters to law firms back in March as an example of how public-facing statements need to be carefully reassessed, as the letters highlighted DEI-aligned information available on the firms’ websites.
- Review agency settlements with higher education
Beecher also suggested that practitioners look over recent settlements in the higher education space, including those with the University of Virginia, Cornell, and Northwestern, as these provide further hints on the trajectory in the private sector:
“You find a certification obligation in a number of them. You’re certifying that you were in compliance every quarter. I think what we’re seeing with higher ed and how they’re coming from all angles of the federal government, you’re going to see that on private employers as well.”
The presentation deck and recording for this webinar can be found on the NILG website.
Prepare your non-discrimination efforts for future scrutiny. Please get in touch to learn more.
About the Author
Kim Hendon oversees account management and sales for Affirmity. She is responsible for building successful, long-term partnerships with clients and generating new business. Having served with the company for more than 25 years, Ms. Hendon has in-depth knowledge and broad experience in all areas of workforce analytics and HR compliance.
Ms. Hendon assists clients with the planning and development of workforce compliance and non-discrimination programs, as well as employee engagement initiatives. She holds a Bachelor of Arts in Speech Communication and a Master’s in Business Administration. Connect with her on LinkedIn.