EEOC Rescinds Longstanding Affirmative Action Guidance, Signaling Increased Scrutiny Of Voluntary DEI And Affirmative Action Programs

On June 30, 2026, the US Equal Employment Opportunity Commission (EEOC) voted to rescind two longstanding policy documents governing voluntary affirmative action under Title VII of the Civil Rights Act of 1964. "Affirmative action" has been a politically polarizing and legally confusing concept in employment law. The EEOC's guidance, for instance, is not to be confused with "affirmative action" in higher education admissions or public-sector employment, which has been unlawful in Michigan since a 2006 constitutional amendment. In the private-sector employment context, by contrast, voluntary affirmative action plans have long occupied a much narrower space. Under Title VII, as interpreted in United Steelworkers of America v. Weber and Johnson v. Transportation Agency, such plans have been permissible only in limited, remedial circumstances—typically where an employer could identify a manifest imbalance in a traditionally segregated job category, adopt a temporary and narrowly tailored measure to address it, and avoid unnecessarily trammeling the interests of other employees.

As a practical matter, few modern workplaces present the conditions necessary to sustain such a plan. Against that already-limited backdrop, and following the Supreme Court's 2025 decision in Ames v. Ohio Department of Youth Services—which confirmed that Title VII protects every individual equally and rejected any heightened burden for so-called majority-group plaintiffs—the EEOC has now rescinded the very guidance that private-sector employers historically relied upon to evaluate these narrow plans. Notably, many contemporary diversity, equity, and inclusion initiatives function as informal or "shadow" voluntary affirmative action programs, and they raise the same questions under Title VII when they extend employment-related benefits or opportunities based on protected characteristics.

I. The Rescinded Guidance

Originally issued in 1979, the guidance outlined when employers could adopt voluntary affirmative action plans under Title VII. The guidance focused on workforce imbalances, prior discrimination, adverse-impact concerns, and the underrepresentation of women and minorities in certain positions. Additionally, the guidance explained how the EEOC would evaluate affirmative action programs implemented pursuant to federal contractor obligations, court orders, settlement agreements, and other remedial initiatives.

For more than four decades, the guidance served as the EEOC’s principal roadmap regarding when affirmative action measures could be considered consistent with Title VII. Section 607 of the Compliance Manual supplemented those guidelines by outlining the Agency’s enforcement position concerning voluntary affirmative action programs.

In announcing the rescission, the EEOC stated that the guidance had become obsolete and failed to account for significant developments in federal anti-discrimination jurisprudence.

According to the Agency, the guidance permitted or endorsed forms of race- and sex-conscious decision-making that the Commission now views as inconsistent with Title VII.

II. Why the EEOC Rescinded the Guidance

The EEOC explained that its decision was driven by both the text of Title VII and evolving Supreme Court precedent. In particular, the Commission emphasized that Title VII provides the same protections to every individual regardless of race, sex, or other protected status, for “the Founders’ vision rested on the enduring principle that every individual is created equal and therefore is entitled to equal treatment under the law.” Furthermore, the EEOC concluded that the 1979 guidelines could not be reconciled with modern judicial interpretations of the statute.

Following the Commission’s vote, the EEOC issued a final interpretive rule formally removing the guidelines from the Code of Federal Regulations. The rule became effective July 6, 2026, and applies as of June 29, 2026.

More broadly, the rescission signals the federal government's continued focus on employment practices that consider race, sex, or other protected characteristics in workplace decision-making. Similarly, other recent EEOC enforcement priorities indicate an increased focus on Diversity, Equity, and Inclusion (DEI) programs and other workplace initiatives that may implicate Title VII.

III. What Has Not Changed

Importantly, the EEOC’s action does not amend Title VII. The statute’s prohibition against discrimination based on race, color, religion, sex, or national origin remains unchanged. Likewise, the rescission does not eliminate Supreme Court decisions recognizing that voluntary affirmative action plans may be lawful in certain limited circumstances. Those judicial decisions remain binding authority.

In addition, employers subject to affirmative action requirements arising from court orders, consent decrees, federal contractor obligations (to the extent they are still applicable), or state and local laws must continue to comply with those obligations, unless and until the applicable legal requirements change.

IV. Practical Implications for Employers

Although the rescission does not directly prohibit voluntary affirmative action plans, it does remove the EEOC’s longstanding administrative framework that many employers used to evaluate and defend such programs. Employers can no longer rely upon the rescinded guidance as evidence that a particular initiative conforms to the EEOC’s articulated enforcement position.

As a practical matter, many employers have not implemented formal voluntary affirmative action plans under the framework recognized by Weber, Johnson, and the rescinded EEOC guidance for many years. Nevertheless, the rescission is significant because it reflects the EEOC's current view of workplace initiatives that expressly consider protected characteristics and may foreshadow increased scrutiny of certain recruiting, mentoring, leadership-development, internship, fellowship, and other DEI-related programs.

Finally, employers may face increased litigation risk as private plaintiffs challenge race-conscious or sex-conscious workplace initiatives. While the legality of any particular program will remain dependent on its specific facts and circumstances, the EEOC’s action reflects a broader federal enforcement posture that places greater emphasis on equal treatment principles under Title VII.

V. Key Takeaways

The EEOC’s rescission of its affirmative action guidance represents another significant development in the evolving legal landscape surrounding workplace diversity initiatives.

Employers should consider reviewing existing affirmative action programs and DEI-related programs. Particularly, employers should give attention to whether those programs consider race, sex, or other protected characteristics in employment decisions. Accordingly, employers should evaluate whether such initiatives remain supportable under current Title VII jurisprudence, and employers should not rely on the rescinded EEOC guidance when conducting that analysis. Finally, employers should ensure that any diversity-focused programs are appropriately documented, narrowly tailored, and consistent with applicable legal requirements.