On June 30, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it has rescinded long-standing agency guidelines titled “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964” and the related “Compliance Manual Section 607 on Affirmative Action” (collectively, the “Guidelines”).
In a statement, the EEOC said that the Guidelines no longer align with the text of Title VII or Supreme Court precedent. The EEOC’s action underscores the agency’s continued scrutiny of workplace plans that consider race, sex, national origin, or other protected characteristics in employment decisions.
Background
The Guidelines previously served as the EEOC’s framework for employers implementing voluntary affirmative action plans (“AAPs”). They permitted employers, in limited circumstances, to consider race, sex, national origin, and other protected characteristics in hiring decisions to remedy the effects of past discrimination and address workforce imbalances. The Guidelines also provided a safe harbor under Section 713(b)(1) of Title VII, which shields employers from liability if they can demonstrate that their challenged actions were taken in good-faith reliance on a written interpretation or opinion of the EEOC.
What Does the Rescission Mean for Employers?
The rescission does not change Title VII itself, overrule Supreme Court precedent, or render all voluntary AAPs unlawful. The Supreme Court has recognized limited circumstances in which voluntary AAPs may be lawful in decisions such as United Steelworkers of America v. Weber,443 U.S. 193 (1979) and Johnson v. Transportation Agency, 480 U.S. 616 (1987), which remain binding law.
Instead, the EEOC’s rescission removes the Commission-approved framework on which employers could previously rely to determine whether and how to adopt voluntary AAPs. In addition to losing the framework previously provided by the Guidelines, employers also lose the ability to rely on those Guidelines as the basis for a Section 713(b)(1) good-faith reliance defense.
How Will the EEOC Approach Affirmative Action Initiatives Going Forward?
In the absence of guidance on when a voluntary AAP is appropriate and the resulting elimination of the safe harbor defense, the EEOC is signaling a trend toward heightened scrutiny of employment practices that explicitly consider race, sex, and other protected characteristics.
The rescission aligns with broader federal enforcement efforts focused on scrutinizing Diversity, Equity, and Inclusion (“DEI”) initiatives and employment practices that consider race, sex, or other protected characteristics in employment decision-making. EEOC Chair Andrea Lucas emphasized that Title VII’s protections apply equally to all workers and that employment decisions should neither favor nor disadvantage individuals based on protected characteristics.
What Should Employers Do Now?
Although the rescission does not alter the text of Title VII or invalidate all voluntary AAPs, it removes a longstanding EEOC framework that employers could previously rely upon when evaluating such plans. Moving forward, employers that maintain voluntary AAPs may no longer point to the Guidelines as a good-faith reliance defense.
Instead, companies should ensure their AAPs are consistent with current law, including the statutory text of Title VII and existing Supreme Court precedent. In doing so, employers should proactively review any AAPs and similar initiatives that consider protected characteristics to ensure that such plans are supported by clear legal and factual justification and are narrowly tailored to withstand heightened regulatory scrutiny. Initiatives without clear documentation or well-defined limiting criteria—particularly those focused on specific races, genders, or ethnic groups—may face increased scrutiny in the current enforcement climate.
** The author gratefully acknowledges Summer Associate Peyton Holmes for her research and drafting assistance in the preparation of this article.
