The Equal Employment Opportunity Commission has made DEI programs a significant focus of its current enforcement agenda. Its June 2026 National Enforcement Plan identifies several practices for scrutiny, including demographic quotas, restricted internships and mentoring programs, diverse candidate-slate requirements, and compensation incentives tied to workforce demographics.
The priority shift does not make every diversity-related initiative unlawful. It does, however, give employers good reason to review whether race, sex, or another protected characteristic affects access to employment opportunities or individual employment decisions. The following five practices deserve particular attention.
1. Review Eligibility for DEI Internships, Mentoring, and Leadership Programs
Many employers use diversity, equity, and inclusion (DEI) programs to expand access to internships, mentoring, fellowships, leadership academies, and other professional-development opportunities. The legal risk depends less on the employer’s broader objective than on how participants are recruited and selected.
DEI Recruiting Efforts Can Broaden the Applicant Pool
An employer generally has more flexibility to broaden recruiting efforts than to restrict eligibility for an employment opportunity.
For example, an employer may advertise an internship through organizations serving particular communities, recruit at schools with diverse student bodies, or make additional efforts to ensure that qualified candidates are aware of the opportunity. These practices can support the objectives of DEI programs without making race, sex, or another protected characteristic part of the selection decision.
A more significant concern arises when an employer reserves participation for individuals of a particular race or sex or gives those characteristics weight in selecting participants.
The distinction is important:
- Expanding the audience that learns about an opportunity is different from excluding applicants based on protected status.
- Addressing identified developmental needs is different from assuming that employees have those needs because of their demographic characteristics.
- Encouraging broad participation is different from reserving positions for members of specified groups.
DEI Mentoring Programs Should Use Neutral Selection Criteria
The same principles apply to DEI mentoring programs and leadership-development initiatives.
An employer may identify employees who would benefit from additional experience, exposure, training, or sponsorship. Selection criteria should ordinarily relate to the employee’s position, performance, experience, potential, or demonstrated developmental needs. They should not simply focus on the employee’s race, sex, or other protected status.
Employers should compare the written eligibility requirements for DEI programs with the way participants are selected in practice. A program may appear neutral on paper but create risk if managers informally reserve spaces for employees from particular demographic groups.
Informal DEI Programs May Still Provide Employment Benefits
Employers should also review DEI programs that may not traditionally have been viewed as formal employment decisions.
An employer-sponsored networking event, executive-access program, professional conference, or association membership may provide meaningful career benefits. Restricting access based on race or sex can therefore raise the same basic concern as restricting access to formal training or development programs.
In February 2026, the EEOC sued Coca-Cola Beverages Northeast, alleging that the company unlawfully excluded male employees from a paid, employer-sponsored women’s leadership event. The allegations remain unproven, but the case illustrates the agency’s position that employers may not restrict access to employer-sponsored networking and professional-development opportunities based on sex.
2. Review Diverse Candidate Slates and Interview Panels
Some DEI programs require a “diverse slate” of candidates before an employer may fill a position. Others require interview panels to include employees from specified demographic groups. Under the EEOC’s current enforcement approach, both practices deserve careful review.
DEI Recruiting Standards Should Focus on Process
The safer approach is to focus DEI recruiting requirements on the quality and breadth of the search—not on the demographic identity of individual candidates. An employer may expand recruiting sources, improve job postings, reconsider unnecessary qualifications, and require a meaningful search before filling a position. Those measures can increase the number and variety of qualified applicants without making protected status part of the selection criteria.
Diverse-Slate Requirements Can Affect Applicants Before Selection
A DEI candidate-slate policy becomes more problematic when a candidate’s race or sex determines whether:
- The candidate may be included in the slate;
- Interviews may begin;
- A search must remain open;
- An otherwise complete search must be restarted;
- A manager may select a preferred candidate; or
- A particular employee may serve on an interview panel.
Suppose a hiring manager has identified several qualified applicants but is told that interviews cannot proceed until the slate includes a candidate from a particular demographic group. Even if the employer ultimately claims to select the best-qualified candidate, it may already have treated applicants differently based on protected status in administering the process.
That does not mean employers must accept narrow or poorly developed applicant pools. Employers may establish recruiting standards designed to produce a robust pool of qualified candidates. Those standards should be defined without requiring the presence of an applicant of a particular race, sex, or other protected characteristic.
DEI Interview Panels Should Be Based on Role and Expertise
Employers should similarly distinguish between assembling an effective interview panel and selecting panel members to achieve a particular demographic appearance. A panel may appropriately include employees with different roles, perspectives, expertise, and working relationships. It may include individuals who understand the position, supervise related functions, work closely with the successful candidate, or can evaluate particular competencies.
Selecting or excluding an employee because of race or sex presents a different issue. Employers using interview-panel requirements as part of their DEI programs should ask whether they can explain each panel member’s participation without referring to protected status.
3. Review Demographic Goals, DEI Scorecards, and Incentive Compensation
Many DEI programs include workforce demographic data, representation goals, management scorecards, or performance objectives. Monitoring demographic information is not necessarily the same as making employment decisions based on that information.
Aggregate data can help employers identify possible barriers in recruiting, hiring, promotion, retention, compensation, or other employment processes. The legal concern is how the employer uses the data and whether demographic objectives influence individual decisions.
DEI Data Can Be Used to Evaluate Employment Systems
Employers may use aggregate demographic data to determine whether qualified applicants are entering the recruiting process, whether employees have equal access to advancement, or whether particular policies appear to create unintended barriers.
A review conducted through a DEI program might properly lead an employer to examine where open positions are advertised and whether:
- stated job qualifications are genuinely necessary;
- employees know about promotional opportunities;
- interview criteria are applied consistently;
- training programs are broadly accessible; and
- unexplained disparities require further analysis.
These practices evaluate employment systems. They do not necessarily require different treatment of individual applicants or employees based on demographic characteristics.
Demographic Goals Can Pressure Employment Decision-Makers
A DEI program creates greater risk when managers understand demographic goals to mean that they should:
- Hire or promote candidates from particular groups;
- Avoid selecting candidates from groups viewed as overrepresented;
- Produce a predetermined demographic result;
- Reconsider an otherwise supportable decision because of the selected candidate’s race, sex, or other protected characterstic; or
- Give protected status weight in an evaluation, succession, layoff, or compensation decision.
The EEOC’s National Enforcement Plan specifically identifies “aspirational goals” as potential enforcement targets when they operate as proxies for quotas or otherwise encourage or incentivize race- or sex-based decision-making. A DEI goal described as aspirational may still exert considerable pressure. Emails, presentation materials, meeting notes, and performance evaluations may later be used to argue that decision-makers understood demographic outcomes to be part of their assigned responsibilities.
DEI Bonuses and Incentives Require Particular Attention
Employers should closely review DEI programs that connect the compensation or performance evaluations of executives, managers, recruiters, or human resources personnel to demographic results.
Relevant questions include:
- Is the incentive based on recruiting activity or final workforce demographics?
- Are managers rewarded for conducting a broad and fair process, or for reaching particular numbers?
- What happens when a department does not meet a demographic goal?
- Are individual decisions reconsidered or criticized because of demographic results?
- Does management compensation depend on the demographic composition of hires, promotions, or leadership teams?
Employers should make clear that managers are responsible for fair, inclusive, and well-documented employment processes rather than for selecting employees based on protected status.
Limit Access to Demographic Data During Employment Decisions
Employers should also consider who can access demographic data and when that access is appropriate.
Human resources or compliance personnel may need aggregate information to evaluate whether DEI programs and employment systems are operating fairly. An individual hiring manager may have no corresponding need to see demographic data while selecting among candidates. Separating demographic analysis from individual decision-making can reduce both the actual influence of protected status and the later appearance that it affected a decision.
4. Review the Substance of DEI Programs, Not Just Their Names
Some employers have responded to changing enforcement priorities by removing “DEI” from department names, job titles, training materials, and public statements.
There may be business or communications reasons to reconsider terminology. Renaming DEI programs, however, does not resolve the substantive employment law concerns.
Employment Law Focuses on How DEI Programs Operate
A program called “Belonging,” “People and Culture,” “Inclusive Excellence,” or “Opportunity and Access” remains subject to the same employment-discrimination laws as a program expressly labeled “DEI.”
Key questions include:
- What does the program do?
- Who may participate?
- What employment benefits does participation provide?
- How are participants selected?
- Does protected status affect access or selection?
An employer does not eliminate legal risk by renaming DEI programs while retaining protected-status eligibility rules, demographic preferences, or outcome-based incentives.
Review Eligibility, Selection, and Benefits Under DEI Programs
Employers should review the substance of DEI programs before concentrating on terminology.
The review should determine whether:
- eligibility depends on protected status;
- protected status affects participant selection;
- managers receive demographic instructions or targets;
- demographic information is shared with decision-makers;
- participation provides access to compensation, advancement, senior leaders, or other career benefits;
- employees are excluded from opportunities based on protected characteristics; and
- program materials describe preferences more broadly than the employer can legally support.
A DEI program may create meaningful employment advantages even if it does not guarantee a job or promotion. Access to senior leaders, prominent assignments, specialized training, sponsorship, and professional networks may materially affect an employee’s career.
Lawful DEI Programs Can Continue to Expand Access
Employers should not assume that every initiative associated with DEI programs must be eliminated.
Companies may continue efforts directed toward:
- Equal employment opportunity;
- Broad and effective recruiting;
- Consistent selection procedures;
- Antidiscrimination compliance;
- Workplace accessibility;
- Awareness of available opportunities; and
- The identification and removal of unnecessary barriers.
The objective should be to separate legitimate efforts to broaden access from practices that allocate employment opportunities based on protected characteristics.
5. Document Decisions Made Alongside DEI Programs
Documentation becomes particularly important when an employer has adopted DEI programs, discussed demographic goals, or publicly emphasized workforce representation.
A general commitment to diversity does not establish discrimination. But broad statements about DEI programs can create damaging context when the employer cannot clearly explain how an individual employment decision was made. An employee challenging a hiring, promotion, compensation, layoff, or development decision may point to the employer’s DEI statements as evidence that race, sex, or another protected factor influenced the outcome.
Establish Neutral Selection Criteria in Advance
Employers should define relevant selection criteria before decision-makers begin comparing candidates. The criteria should relate to the job, promotion, development opportunity, or other decision at issue. Depending on the position, appropriate criteria may include:
- Relevant experience;
- Job performance;
- Technical skills;
- Leadership ability;
- Business knowledge;
- Disciplinary history;
- Attendance where legally appropriate; or
- Demonstrated potential.
Establishing criteria in advance helps demonstrate that the employer did not alter its standards to support a desired result under a DEI program.
Useful practices include:
- Creating written selection criteria;
- Identifying the relative importance of each criterion;
- Training interviewers to apply the criteria;
- Using consistent questions where appropriate; and
- Addressing unusual circumstances before the final decision.
Document the Actual Reasons for Employment Decisions
Employers should be able to show that individual employment decisions rested on established, job-related considerations rather than demographic goals associated with DEI programs.
Useful documentation may include:
- Interview notes;
- Candidate evaluations;
- Scoring materials;
- Performance records;
- Written recommendations;
- Succession-planning materials;
- Compensation analyses;
- Layoff-selection worksheets; and
- Contemporaneous explanations for selections and nonselections.
Documentation should reflect the actual decision-making process. An explanation created after an EEOC charge is filed will generally be less persuasive than contemporaneous records that show how candidates were evaluated.
Managers should also avoid vague explanations such as “not the right fit” or “we decided to go in another direction” when more specific, job-related reasons supported the decision.
Separate DEI Recruiting Objectives from Selection Decisions
Employers may appropriately use DEI programs to attract a broader range of qualified candidates. Those recruiting efforts should remain distinct from the final selection process.
The recruiting record might identify:
- The sources used to advertise the position;
- Organizations contacted;
- Outreach efforts undertaken;
- The number of applications received; and
- Whether the employer extended the search to reach additional qualified applicants.
The selection record should focus on why the successful candidate was chosen based on established, neutral criteria. Maintaining that separation helps demonstrate the distinction between broadening access to the hiring process and using protected status to determine the outcome.
Informal DEI Communications Can Undermine a Defensible Decision
Employers should review not only formal DEI program materials but also emails, text messages, presentation notes, and other informal communications.
A manager may make an otherwise defensible employment decision but create unnecessary risk by referring to the need to:
- “Improve the numbers”;
- “Change the face” of a department;
- “Balance” a leadership team;
- Select someone who contributes to a demographic objective; or
- Avoid another hire from an allegedly overrepresented group.
That language may not accurately describe the decision. It may nevertheless become central evidence in an EEOC investigation or employment discrimination lawsuit. Thus, managers should be trained to discuss decisions accurately and in job-related terms rather than using demographic shorthand associated with DEI programs.
Do Voluntary Affirmative Action Plans Protect DEI Programs?
Federal contractors were historically subject to distinct affirmative action requirements under Executive Order 11246, which President Trump rescinded in January 2025. Our earlier article provides background on Executive Order 11246 and federal-contractor affirmative action.
Separate legal principles have also permitted some narrowly structured voluntary affirmative action plans under Title VII. Those principles remain relevant, but they apply only in limited circumstances and do not create a general safe harbor for modern DEI programs. An employer seeking to justify a voluntary affirmative action plan under Title VII needs more than a general desire to improve workforce representation. The employer must be able to identify a legally sufficient basis for the plan, define how it will operate, limit its effect on other employees, and ensure that it does not become a permanent system of demographic preferences.
The EEOC’s rescission of its earlier affirmative action materials does not itself eliminate existing judicial precedent. It does, however, signal that employers should not rely casually on older agency guidance or assume that a program is protected merely because it is labeled “affirmative action” or serves the goals of a DEI program.
Any employer relying on a voluntary affirmative action theory should obtain a specific legal assessment of the plan, the evidence supporting it, the employment decisions it affects, and applicable federal and state law. A general preference for a more demographically balanced workforce is not enough.
What New York Employers Should Know About DEI Programs
The EEOC’s enforcement priorities affect federal enforcement, but they do not define the entire legal environment for DEI programs maintained by New York employers.
The New York State Human Rights Law independently prohibits discrimination based on protected characteristics and generally applies more broadly than federal law in several respects. New York employers may also be subject to local antidiscrimination laws, such as the New York City Human Rights Law.
Federal enforcement priorities can change without altering the statutory text. An EEOC decision to emphasize intentional discrimination associated with DEI programs does not eliminate other legal theories or prevent private plaintiffs, state agencies, or local agencies from pursuing them. New York employers should therefore avoid overcorrecting. Eliminating neutral outreach, antidiscrimination training, accessibility initiatives, or reviews intended to identify employment barriers may not reduce legal risk and could instead increase it.
The more durable approach is to maintain fair and inclusive employment systems while ensuring that individual opportunities and employment decisions do not depend on legally protected characteristics.
The Practical Bottom Line for Employer DEI Programs
The most important question is not whether an employer uses the term “DEI.”
Employers should instead ask:
- Who receives access to opportunities offered through DEI programs?
- What criteria determine eligibility and selection?
- Do managers consider race, sex, or another protected characteristic?
- Do demographic goals create pressure to reach particular outcomes?
- Can the employer explain and document each decision without relying on protected status?
Employers do not need to abandon DEI programs designed to recruit broadly, identify barriers, prevent discrimination, or provide meaningful development opportunities. They should, however, determine whether any DEI program crosses the line between expanding access and allocating employment opportunities based on protected status. Under the EEOC’s current enforcement plan, that distinction is likely to receive considerably more attention.
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