The Latest – A New EEOC Enforcement Playbook, State Pushback on Disparate Impact, And The ICHRA Surge (June 2026)

Jenny Kiesewetter is a practicing ERISA and employee benefits attorney who partners with HR teams on a wide range of workplace compliance matters — from benefit-plan obligations to day-to-day HR policies and regulatory requirements. Her guidance helps employers spot risks early, navigate regulatory change, and make informed decisions that support both employees and the organization.

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The federal government and the states are pulling in opposite directions on workplace law, and courts keep getting asked to referee. The Equal Employment Opportunity Commission formalized an enforcement agenda built around the administration’s priorities. Illinois answered by moving to write disparate impact liability into state law. New York is about to hand employees the keys to their personnel files, the Supreme Court agreed to settle a fight over Title IX employment claims, and the Fifth Circuit confirmed that pandemic telework did not rewrite anyone’s job description. Add surging health costs pushing ICHRAs into the mainstream, and June already demands attention.

Here is what to track.

Effective Date: Adopted by commission vote on June 4, 2026; effective immediately.

What’s Changing:

On June 4, 2026, the Equal Employment Opportunity Commission (EEOC) voted to rescind its Biden-era 2024–2028 Strategic Enforcement Plan and replace it with a new Fiscal Year 2025–2029 National Enforcement Plan. The new plan formalizes the priorities Chair Andrea Lucas has pursued for more than a year.

The plan directs enforcement resources toward remedying DEI-related race and sex discrimination, protecting American workers from anti-American national origin discrimination, defending single-sex spaces at work, and protecting workers’ religious accommodation rights. It also states the agency will use its enforcement discretion to advance the administration’s policy objectives and comply with relevant executive orders, including the April 2025 order directing federal agencies to eliminate disparate impact theories to the maximum degree possible.

Consistent with that order, the plan states that the EEOC will prioritize disparate treatment theories, eliminate disparate impact theories in investigations to the maximum degree possible, and decline to commence, develop, or continue litigation advancing disparate impact claims. That does not eliminate Title VII’s disparate impact provisions or binding court precedent, but it does signal a sharp change in how the agency plans to use its enforcement resources.

Commissioner Kalpana Kotagal, the commission’s lone Democrat, voted against the plan, as described in her June 4th LinkedIn post. It stays in place until a majority of the commission votes to supersede, modify, or withdraw it.

HR Takeaway

Expect charge activity and litigation that track the new priorities, including claims brought by employees challenging diversity, equity, and inclusion (DEI)-related practices, sex-based classifications, national-origin issues, and religious accommodation denials.

• Audit DEI programs, mentorship initiatives, and employee resource groups to confirm eligibility is open to all employees.
• Document the individualized, job-related reasons behind every hiring and promotion decision.
• Refresh religious accommodation procedures, which now sit squarely on the agency’s priority list.

Effective Date: Passed the Illinois General Assembly the week of June 1, 2026; awaiting the governor’s signature.

What’s Changing:

The Illinois General Assembly approved Senate Bill 3777, known as the Civil Rights Safeguard Act, which codifies disparate impact protections under the Illinois Human Rights Act. The bill targets policies and practices that appear neutral on their face but disproportionately harm protected groups, such as hiring criteria, screening standards, testing procedures, promotion standards, and other workplace practices that disproportionately affect protected groups without sufficient job-related justification or business necessity.

The bill responds to federal efforts to limit disparate impact enforcement, including the president’s April 2025 executive order,“ which directed federal agencies, including the EEOC, to eliminate or de-emphasize disparate impact liability to the maximum degree possible and deprioritize enforcement of statutes and regulations that include disparate impact liability.” The Illinois Department of Human Rights (IDHR) backed the legislation. IDHR describes the bill as an effort to keep disparate impact protections embedded in Illinois law even as federal agencies roll back enforcement.

The same executive order directed the U.S. attorney general to evaluate whether state laws codifying the theory are preempted by federal law. If Governor JB Pritzker signs the bill, Illinois joins the states setting the stage for a preemption fight. He has not yet said whether he will.

HR Takeaway

Multistate employers should continue to treat disparate impact liability as a live risk at the state level despite the federal enforcement shift.

• Disparate impact liability remains alive at the state level and in private litigation regardless of federal enforcement posture.
• Keep validating selection criteria, skills tests, background check policies, and AI-driven screening tools against business necessity rather than treating the federal pullback as a free pass.
• Monitor whether Governor Pritzker signs SB 3777 and prepare to update Illinois hiring and screening policies if the bill becomes law.

Effective Date: Passed the New York Legislature May 19, 2026; takes effect 60 days after Governor Kathy Hochul signs.

What’s Changing:

Both houses of the New York Legislature passed Senate Bill S3460, granting current and former employees the right to obtain copies of their personnel records, not merely to inspect them, within five business days of a written request and at no cost. The definition of personnel record sweeps broadly:

• job applications
• performance evaluations
• pay information
• written warnings
• termination notices and
• disciplinary records all qualify,

including records held by third-party vendors under contract with the employer.

The bill adds an affirmative notice duty. When an employer places information in a file that could negatively affect an employee’s qualifications for employment, promotion, transfer, compensation, or discipline, it must notify the employee within 10 days. Employees who dispute file contents may submit a written rebuttal that travels with the record. Employers must also retain complete personnel records from hire until three years after termination. Violations carry fines of $500 to $2,500, enforced by the New York Attorney General, and the bill prohibits retaliation, if enacted.

HR Takeaway

New York employers should prepare now for a tight, mandatory response timeline and expanded employee access to personnel records.

• A five-business-day production deadline leaves no room for improvisation; inventory where personnel records live, including vendor and professional employer organization (PEO) systems.
• Build a standardized request-intake process and train managers on documentation practices now, because everything they write may soon be read by its subject.
• Ensure retention practices can support keeping complete personnel records from hire until three years after termination and prepare to implement the affirmative notice duty if the bill is signed.

Effective Date: Certiorari granted May 18, 2026, in Crowther v. Board of Regents of the University System of Georgia; argument expected during the October 2026 term.

What’s Changing:

On May 18, 2026, the Supreme Court agreed to hear a consolidated case asking whether employees of federally funded educational institutions have an implied private right of action to sue for sex discrimination in employment under Title IX of the Education Amendments of 1972, or whether Title VII of the Civil Rights Act of 1964 provides their exclusive remedy for sex discrimination in employment.

The distinction matters. Title VII requires employees to file a charge with the EEOC before suing, imposes shorter filing deadlines, and caps compensatory and punitive damages. Title IX does not impose the same EEOC charge requirement, Title VII filing deadlines, or statutory damages caps, if it is available as a private employment remedy.

The petitioners, a former Georgia Tech women’s basketball coach and a former Augusta University art professor, argue that eight circuits permit employment discrimination claims under Title IX while three, now including the Eleventh Circuit, do not.

The Eleventh Circuit held that Title IX does not provide employees with an implied private right of action for employment discrimination. The federal government filed an amicus brief agreeing with that outcome while urging the Court to resolve the split.

HR Takeaway

Education-sector employers should monitor this case closely and assess how a Title IX employment remedy could change their litigation exposure.

• Colleges, universities, K-12 districts, and any employer operating a federally funded education program should watch this case closely.
• A ruling for the petitioners would open a second, less restrictive litigation channel for sex discrimination claims and change how these employers assess exposure in sex-based disputes.
• Brief leadership and legal teams on the potential for employees to bypass the EEOC charge requirement and damage caps if Title IX is recognized as an employment remedy.

Effective Date: Decided May 8, 2026 (U.S. Court of Appeals for the Fifth Circuit, covering Texas, Louisiana, and Mississippi).

What’s Changing:

In Hayes v. GStek, Inc., the Fifth Circuit affirmed the dismissal of an Americans with Disabilities Act (ADA) suit brought by an IT systems administrator at GStek, Inc., a federal contractor at Fort Polk. The employee teleworked during the COVID-19 pandemic, returned to the office in February 2022, and later requested full-time remote work as an accommodation for autism, major depressive disorder, and social anxiety disorder. GStek denied the request because the Army no longer authorized telework for certain contractors, but offered two to three remote days per week. The company later discharged him for absenteeism.

The court held the employee was not a qualified individual under the ADA because in-person attendance was an essential function of his job. Temporary pandemic telework did not permanently alter those essential functions, and in-person attendance is presumed essential for most jobs. The partial telework offer satisfied the employer’s accommodation obligations; the ADA does not require an employer to grant the employee’s preferred arrangement when doing so would change the job itself. The court also rejected the retaliation claim.

HR Takeaway

Employers should reinforce clear job descriptions and return-to-office documentation to defend against ADA telework accommodation claims.

• Job descriptions won this case; state clearly which roles require on-site presence and why.
• Document the business reasons for any return-to-office transition and record every step of the interactive process.
• Record alternative accommodations offered and rejected, so the employer can show it fulfilled its obligations without changing the essential functions of the job.

Effective Date: SureCo published “The State of ICHRA 2026” report in May 2026.

What’s Changing:

Individual coverage health reimbursement arrangements (ICHRAs) have moved from the edges of benefits strategy into the standard renewal conversation. According to SureCo’s annual survey of 1,500 HR professionals, employees, and benefits consultants, 56 percent of brokers and advisors now actively recommend or implement ICHRAs, and the share of brokers who have moved at least one client to an ICHRA grew from 15 percent in 2024 to 37 percent in 2026.

Cost pressure is driving the shift. Employer-sponsored family premiums reached $26,993 in 2026, a 26 percent increase over five years that outpaces inflation and wage growth. Nearly 90 percent of surveyed employers reported a rate increase this year, and one in three absorbed a double-digit hike.

Brokers report average client savings of roughly 15.5 percent after switching. One caution: individual market rates spiked an average of 21 percent after the enhanced Affordable Care Act premium tax credits expired, which complicates the savings math for some workforces.

HR Takeaway

ICHRAs should be included in your next renewal analysis, but only after modeling costs and building strong employee support.

• ICHRAs deserve a seat at your next renewal analysis, but the model shifts plan selection onto employees.
• Success depends on the education, decision support, and enrollment guidance you provide to help employees navigate the individual market.
• Model the numbers against your workforce demographics before committing, particularly given the risk of individual market rate increases after changes to ACA premium tax credits.

The June theme is divergence. The EEOC now enforces one vision of civil rights law while states like Illinois and New York move in a different direction. The Supreme Court will spend its next term sorting out which statutes reach which workplaces. Compliance programs built only around federal enforcement priorities will leave gaps that state attorneys general and private plaintiffs may be ready to test.

Employers should start where the risk is closest. Those with New York employees should get personnel-file procedures ready before the governor acts. Education employers should brief leadership on the Title IX case and the potential litigation shift. Employers with DEI programs should review them against the EEOC’s new enforcement plan. Employers staring down a painful health plan renewal should run the ICHRA numbers.

Federal and state law are not moving together right now. Employers should not assume a federal pullback means state agencies, legislatures, or plaintiffs will follow. In many places, they are moving in the opposite direction.

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