EEOC Rescinds Decades-Old Affirmative Action Guidance
On June 29, the Equal Employment Opportunity Commission (EEOC) voted to rescind decades-old guidance on affirmance action. In so voting, the EEOC took the position that the documents ran afoul of Title VII’s text as well as case law that has developed in the intervening years since the guidance was published.
Impacted policy documents included:
The 1979 Interpretative Rule: Titled “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964,” which outlined how employers could voluntarily implement affirmative action plans in compliance with federal civil rights law.
Section 607 of the EEOC Compliance Manual: Adopted in 1981, which built upon the 1979 guidelines and provided a detailed discussion of how affirmative action plans could be legally deployed.
In rescinding the policy guidance, the EEOC relied in part on the US Supreme Court’s 2025 decision in Ames v. Ohio Department of Youth Services, which dispelled the concept of “reverse” discrimination, making clear that discrimination on the basis of a protected characteristic is unlawful “discrimination,” no matter the identity of who engaged in the discrimination or which workers were harmed or benefited. For more information on that decision, see our detailed alert. The guidelines were rescinded without an opportunity for public comment.
This action by the EEOC is consistent with its shift away from diversity, equity, and inclusion (DEI) practices under the current administration. Notably, the rescission removes EEOC guidance but does not, by itself, make voluntary affirmative action plans unlawful under Title VII. However, employers no longer have a formal EEOC framework to point to as a “safe harbor” when designing or defending such programs.
In light of evolving agency positions relating to both DEI and affirmative actions, employers will want to assess their current practices to ensure compliance with Title VII and established Supreme Court precedent.
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