The National Labor Relations Board (NLRB) just confirmed two new members on August 7, 2026. Both newly confirmed members, James Macy and David Prouty, are members of the Republican party, giving the party a majority in the five-member board. The NLRB is a quasi-judicial body that decides labor and employment matters in administrative proceedings. The purpose of the agency is to protect employees’ rights to join and form unions and to prevent and remedy unfair labor practices committed by private sector employers and unions. Now that the board has a republican majority, it could potentially establish new precedent without the support of the other two non-Republican members. This leadership change could lead to new policy changes and overturning of past precedent from the Biden Administration. Employers should follow and review upcoming Board decisions to ensure compliance with federal labor policy.
Disparate Impact Theory is Under Scrutiny
In June 2026, the U.S. Department of Justice (DOJ) issued an opinion finding that the Equal Employment Opportunity Commission’s (EEOC’s) interpretation of disparate impact liability is unconstitutional. Disparate impact discrimination occurs when a seemingly neutral policy disproportionately harms a legally protected group or class. The Office of Legal Counsel found that the EEOC’s guidelines put pressure on employers to engage in racial discrimination rather than prevent racial discrimination in hiring practices. The opinion from the Justice Department works in tandem with Executive Order 14281, which rejects disparate-impact liability. Executive Order 14281 is directed at removing disparate-impact liability, stating that the use of it has created “a near insurmountable presumption unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups.” The new opinion from the DOJ, as well as Executive Order 14281, calls into question the federal framework that employers have relied upon for neutral employment tests and selection processes. While DOJ opinions are not binding on federal courts, such opinions may lead to confusion among employers attempting to comply with federal laws and the changing framework. As for now, the law has not yet changed, but the application of disparate impact claims may be called into question and lawsuits regarding the parameters of disparate impact claims will likely result.
Concurrently, the EEOC voted to rescind agency interpretive guidelines regarding affirmative action and the accompanying compliance manual, which were previously recognized as appropriate under Title VII. It found that affirmative action policy encouraged employment decisions to be made on the basis of sex, race, and national origin, and therefore, contradicted the requirement for equal employment opportunity in Title VII and Supreme Court precedent.
Employers should continue to review selection procedures and document the business necessity of their practices.
EEOC Enforcement of Civil Rights Laws
Since the beginning of President Trump’s second term, the Equal Employment Opportunity Commission (“EEOC”) has undertaken various actions in alignment with the current administration’s priorities. In an effort to eliminate religious bias, namely against those of Christian or Jewish faith, the EEOC has successfully sued several employers for failure to accommodate, employment discrimination, and retaliation. Further, the EEOC has focused on race and sex discrimination, prioritizing a “colorblind” and “neutral” workplace. Since early 2025, the EEOC has pursued instances of discrimination based on an applicant’s, or employee’s, identity as male, Asian, or white, and has successfully obtained settlement of such cases.
Additionally, EEOC Chair Andrea Lucas has taken initiative in reforming the complaint process by prohibiting monetary sanctions against federal sector employers for an ongoing complaint and investigation. The new approach requires that all federal agency employers be treated as innocent until proven guilty and given a full opportunity to defend the charges.