EEOC Rescinds Longstanding Affirmative Action Guidance

On June 30, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind two longstanding agency documents: 29 C.F.R. Part 1608 (the EEOC’s 1979 affirmative action guidelines) and Section 607 of the EEOC Compliance Manual (Affirmative Action).

The Commission stated that the guidance conflicts with the text of Title VII of the Civil Rights Act of 1964, is inconsistent with Supreme Court precedent since 1979 (including Ames v. Ohio Department of Youth Services (2025)) and no longer reflects the agency’s interpretation of employment discrimination law.

This update applies to all employers subject to Title VII and is effective as of the Commission’s June 30, 2026 vote. Title VII itself is unchanged, and Supreme Court precedent recognizing limited circumstances in which voluntary affirmative action plans may be lawful remains in effect.

What Employers Need to Do

• Review voluntary affirmative action plans, diversity, equity, and inclusion (DEI) programs, and any hiring, promotion, or other employment initiatives that consider protected characteristics, to confirm they are supported by current statutory requirements and court decisions rather than the rescinded EEOC framework.

• Do not rely on 29 C.F.R. Part 1608 or Compliance Manual Section 607 going forward and recognize that the associated good-faith reliance defense under Section 713(b)(1) of Title VII is no longer available for conduct after the rescission.

• Confirm that any retained affirmative action or DEI program has a documented, legitimate, non-discriminatory business basis and that documentation reflects that basis clearly.

• Assess whether any program could be viewed as providing preferences based on protected characteristics and whether it is narrowly tailored under current Supreme Court precedent, including United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987).

• Review whether any state or local affirmative action or equal-opportunity requirements apply independently, and train HR, legal, and leadership teams on the change so decisions reflect the current federal landscape rather than the rescinded guidance.

Overview

What Was Rescinded

• 29 C.F.R. Part 1608 — the EEOC’s 1979 interpretive guidelines on Affirmative Action Appropriate Under Title VII.
• Section 607 of the EEOC Compliance Manual, which explained how the agency evaluated affirmative action plans.

What the Rescinded Guidance Said

• The 1979 guidelines described when voluntary affirmative action plans could be lawful under Title VII, including when they were designed to remedy past or present discrimination or address significant underrepresentation in traditionally segregated job categories.
• The framework generally required a reasonable self-analysis of the workforce, evidence of imbalance, adverse impact, or effects of prior discrimination, and remedial action reasonably related to the identified problem.
• The guidance emphasized that affirmative action plans should be temporary, flexible, narrowly tailored, and not unnecessarily harm the interests of other employees or applicants.

Why the EEOC Rescinded the Guidance

• The Commission stated the guidance conflicts with the text of Title VII and is inconsistent with Supreme Court decisions issued since 1979.
• The EEOC cited Ames v. Ohio Department of Youth Services (2025), in which the Supreme Court held that Title VII applies the same evidentiary standard to all disparate-treatment claims, regardless of whether the employee belongs to a majority or minority group.
• EEOC Chair Andrea Lucas stated that the rescission is intended to align agency policy with Title VII’s requirement that protections apply equally to all individuals.

What Did Not Change

• Title VII of the Civil Rights Act of 1964 remains unchanged. The EEOC did not amend the statute and cannot do so.
• Supreme Court decisions recognizing limited circumstances in which voluntary affirmative action plans may be lawful — including United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987) — remain in effect.
• Only the courts can change those precedents.

Loss of the Good-Faith Reliance Defense

• Part 1608 had been designated as an official EEOC interpretation under Title VII, which historically supported a good-faith reliance defense under Section 713(b)(1) of Title VII for employers who acted in conformity with the guidance.
• With the rescission, that defense is no longer available for conduct going forward.

Why This Matters

Employers can no longer rely on nearly 40 years of EEOC guidance — or the associated statutory good-faith reliance defense — to support voluntary affirmative action plans and related DEI initiatives. Title VII and Supreme Court precedent remain unchanged, but the loss of the EEOC’s framework signals increased agency scrutiny of race-, sex-, and national-origin-conscious employment decisions and shifts the compliance analysis toward current court decisions rather than legacy agency guidance.

Key Risks for Employers

• Continued reliance on rescinded guidance: Programs designed under or documented against the rescinded Part 1608 framework may no longer be defensible in an EEOC investigation or Title VII litigation.

• Loss of the good-faith reliance defense: Employers who acted in conformity with EEOC guidance previously had a potential statutory defense that is now unavailable for conduct going forward.

• Increased EEOC scrutiny: The rescission signals a broader agency focus on employment practices that consider protected characteristics, including DEI-related hiring, promotion, and program design.

• Uncertainty about existing Supreme Court precedents: While Weber, Johnson, and other decisions still recognize limited voluntary affirmative action, future courts may interpret them narrowly considering more recent equal-protection and discrimination rulings, including Ames.

• Inconsistent state or local requirements: State or local affirmative action obligations apply independently of the EEOC’s action, which may create tension between federal-level scrutiny and state-level mandates.

Source References

• EEOC Rescinds Affirmative Action – Press Release (06-30-2026)

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