On June 30, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) voted to rescind its decades-old interpretive guidelines on “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as Amended,” along with the related Section 607 of its Compliance Manual on affirmative action. These documents originally issued in 1979 and updated in the early 1980s, had long provided a framework – and a measure of protection – for employers adopting voluntary affirmative action plans to address underrepresentation and barriers to equal employment opportunity.
For many years, the rescinded guidelines explained when voluntary affirmative action plans could be consistent with Title VII. They emphasized that such plans must be remedial in nature, temporary, flexible, and narrowly tailored; they could not unnecessarily trammel the rights of non-beneficiaries or create new forms of discrimination. Critically, the guidelines and Compliance Manual also supported a “good-faith reliance” defense under Section 713(b)(1) of Title VII, allowing employers to argue that they acted in conformity with written EEOC interpretations. With the guidance now rescinded, that safe harbor defense is no longer available for voluntary affirmative action plans.
The EEOC explained that the guidance conflicted with the text of Title VII and is inconsistent with Supreme Court case law that has developed over the nearly 40 years since the guidance was issued. The rescission does not change Title VII itself and does not overturn Supreme Court decisions such as United Steelworkers v. Weber, 443 U.S. 193, 208 (1979) and Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616 (1987) which recognized that certain voluntary affirmative action plans may be permissible in limited circumstances. However, it is consistent with a broader federal trend under President Trump to roll back civil-rights regulations and diversity, equality, and inclusion initiatives, including efforts to curtail demographic reporting and other antidiscrimination tools.
What this Means For Employers
Employers that have adopted voluntary affirmative action or DEI plans – especially those that reference race, sex or national origin in any way – now face a changed risk landscape. First, the removal of the EEOCs interpretive guidance means there is no longer agency-level written direction describing when the Commission will view voluntary affirmative action as “appropriate” under Title VII. Second, employers can no longer point to the rescinded documents as the basis for a good-faith reliance defense in response to a Title VII claim.
At that same time, voluntary affirmative action plans are not automatically unlawful because of this rescission. The underlying Title VII standards and relevant Supreme Court precedent remain in place; courts may still find carefully designed, remedial plans lawful when they address demonstratable imbalances or the effects of past discrimination and are narrowly tailored to avoid disadvantaging other groups. Nonetheless, the EEOC has signaled that it intends to scrutinize employment practices in which individuals appear to be treated differently based on protected characteristics, even where employers view those practices as part of legitimate DEI efforts.
Practical Steps for Your Organization
In light of this development, employers should promptly reassess their voluntary affirmative action, diversity and inclusion strategies to:
- Review existing voluntary affirmative action plans and any DEI initiatives that incorporate race, gender, ethnicity, or similar factors, focusing on objectives, eligibility criteria, and selection mechanism.
- Confirm that any plan is grounded in a documented analysis of workforce data or identified barriers and is targeted to remedy specific issues rather than to achieve generalized goals.
- Evaluate whether the plan is temporary, flexible, and narrowly tailored and whether it avoids unnecessarily limited opportunities for individuals who are not beneficiaries of the program.
- Ensures compliance with other applicable federal, state and local requirements, including obligations that still apply to federal contractors and public employers despite the EEOC’s rescission.
- Consider alternative approaches that promote equal opportunity and inclusion without explicit preferences based on protected characteristics, such as expanded outreach, barrier-removal measures and enhanced training.
Given the EEOC’s shift and broader federal policy trends, employers should expect increased scrutiny of any initiative that appears to allocate opportunities, benefits, or burdens based on race, sex, national origin, or other protected traits. Organizations that continue to use voluntary affirmative action or DEI plans should do so only after careful legal review, with clear documentation of their remedial purpose and design, and a thorough assessment of litigation exposure under Title VII and analogous laws.