The legal battle between the U.S. Equal Employment Opportunity Commission (EEOC) and The New York Times has escalated into one of the most consequential press-freedom and employment-law clashes in recent memory. What began as a DEI-related discrimination suit has morphed into a sweeping constitutional confrontation with the Times accusing the federal government of weaponizing its enforcement machinery against a news organization for its journalism.
Employers committed to diversity, equity, and inclusion (DEI) programs have spent recent years navigating a hostile enforcement environment. Executive orders threatening broad enforcement action, expansive EEOC investigations, DOJ guidance introducing novel liability theories, and state legislation targeting DEI training have collectively created a climate of significant legal uncertainty.
Even against this backdrop, three recent legal developments offer meaningful encouragement for employers wishing to continue DEI initiatives. Courts and the federal government have begun to draw constitutional and legal limits around aggressive anti-DEI enforcement positions. While the compliance guidance we have previously provided remains relevant, the judicial record has shifted in ways that private employers should understand.
With the 2026 Colorado legislative session now complete, we have a clearer view of which labor and employment bills advanced, or stalled, and which developments deserve employers’ attention. As in recent sessions, workplace legislation remained a major focus, with proposals touching on everything from collective bargaining and worker safety to wage-setting and reporting obligations.
In this update, we revisit the bills previously identified for Colorado employers to watch, along with several additional measures introduced during the session, and explain what matters most for employers.
The 2026 DEI Executive Order recently issued by the White House imposes new obligations on federal contractors and subcontractors, to prevent “artificial” and “unnecessary” DEI program costs from being passed on to the government in federal courts. It limits the definition of racially discriminatory DEI activities to employment decisions, contracting activities such as vendor agreements
This is not the macabre tale of Macbeth. It is the new legal reality. The EEOC’s sweeping subpoena to Nike signals a dramatic change in EEOC enforcement posture toward Diversity, Equity & Inclusion programs previously regarded as permissible, a shift that demands careful navigation by employers.
The Equal Employment Opportunity Commission (EEOC) and the Department of Labor released their 2026 Congressional Budget Justifications (CBJ) on May 30, 2025, providing valuable information related to the EEOC’s enforcement intentions and the future of the Office of Federal Contract Compliance Programs (OFCCP). A CBJ is the annual budget justification materials of a federal agency or a component of a federal agency that are submitted in conjunction with the President’s annual budget submission. The CBJ provides a detailed description of each program and information about how the agency will use funds, including increases and decreases in spending. The EEOC CBJ identifies four enforcement priorities and anticipated investigations into systemic intentional discrimination using the pattern or practice method of proof. Additionally, the EEOC CBJ and the Department of Labor’s Budget in Brief confirm that the OFCCP will be extinguished with its remaining two programs distributed to the EEOC and the Veterans Employment Training Service.
In a recent decision, the United States Court of Appeals for the Seventh Circuit held that an employer did not violate the Pregnancy Discrimination Act (PDA) despite excluding pregnant workers from its “Temporary Alternative Duty” (TAD) policy. In the process, the Seventh Circuit provided valuable guidance related to an employer’s burden of production in pregnancy discrimination litigation and the propriety of exclusionary TAD policies.
On Tuesday, April 19, the American Bar Association’s Labor and Employment Law Section hosted the panel “Navigating the New Normal: Accommodations in the Pandemic Era.” The panel members were Alex Breland of CDK Global in Chicago, IL; Pamela Devi Chandran of the Washington State Nurses Association in Seattle, WA; and Jackie Gessner of Barnes & Thornburg LLP in Indianapolis, IN. Carolyn Wheeler of Katz, Marshall, & Banks LLP in Washington, DC served as moderator. Their consensus was that, although vaccines have (thankfully) lowered Covid-19 infection and death rates, workplace challenges related to Covid have not gone away. They have only changed.