EEOC Rescinds Guidance On Permissible Affirmative Action

On June 30, 2026, the U.S. Equal Employment Opportunity Commission announced that it had rescinded two documents relating to permissible affirmative action¹ under Title VII of the U.S. Civil Rights Act: (1) its regulatory guidelines² on “appropriate” affirmative action under the statute; and (2) section 607 of its Compliance Manual, which addressed those guidelines and the agency’s enforcement positions with respect to permissible affirmative action and affirmative action plans. 

Both the guidelines and the related portion of the Compliance Manual explained that voluntary affirmative action plans were only permitted under federal equal employment opportunity laws when designed to remedy past or present discrimination or to address manifest imbalances in traditionally segregated job categories and carefully structured to avoid unlawfully disadvantaging other employees. The documents emphasized that to be lawful, a plan had to be temporary, flexible, and narrowly tailored, and could not unnecessarily trammel the rights of non‑beneficiaries. Overall, the documents focused on ensuring that affirmative action efforts remedied past or present discrimination without creating new discrimination. Perhaps most significantly, they provided a safe harbor under section 713(b)(1) of the Civil Rights Act, which states that an employer may defend itself in an unlawful employment practice proceeding by demonstrating it was relying in good faith on written guidance from the Commission. With the rescission of the guidance, that good-faith reliance defense is now unavailable to employers.³

While rescission of the EEOC’s guidance does not reverse the Supreme Court’s decisions in United Steelworkers v. Weber, 443 U.S. 193 (1979) and Johnson v. Transportation Agency, 480 U.S. 616 (1987), in which the U.S. Supreme Court recognized that Title VII may allow for certain voluntary affirmative action plans in limited circumstances, it is consistent with the EEOC’s other efforts to signal an intention to scrutinize employment practices in which individuals appear to be treated differently based on sex, race, or national origin. This is in line with the Trump administration’s ongoing attempts to eliminate the consideration of race and sex in almost all workplace contexts. While the EEOC’s announcement indicated that in its view, rescission of these guidance documents “is consistent with the text of Title VII and Supreme Court precedent,” whether Weber and Johnson still remain good law is for the Supreme Court to decide.

Given the rapid development of the law in this area, the increased focus of the EEOC and other federal agencies’ focus on “unlawful DEI” and any consideration of race or gender in employment decision-making, as well as the public scrutiny of companies’ efforts in such matters from both supporters and detractors, employers are advised to work closely with counsel to ensure their workplace policies are compliant with Title VII and other federal, state, and local civil rights law.

Footnotes

1. For purposes of the EEOC’s guidelines and Compliance Manual, “affirmative action” means “a justification for a policy or practice based on race, sex, or national origin.” CM-607.1(a) (emphasis added). In other words, the EEOC is here talking about those circumstances in which an employer may be permitted to prefer one individual over another based on an individual’s race, sex, or national origin. 

It is important to note that the term “affirmative action” is more often used differently. As used today, affirmative action usually refers to the tools available to management to ensure equal employment opportunity without engaging in any type of preference.  See, e.g. 41 CFR §60-2.10(a). Accordingly, the EEOC’s announcement today does not impact the continuing obligation of federal contractors to maintain affirmative action programs for veterans and individuals with disabilities. To the extent that most state and local affirmative action programs for government contractors do not permit employers to discriminate, such programs should also be unaffected by the EEOC’s actions.

2. The EEOC is prohibited from promulgating substantive regulations under Title VII and thus can only set forth non-binding guidance.

3. Because this defense was only available to employers that were willing to admit to having discriminated, it was rarely if ever invoked. Accordingly, the EEOC’s actions in rescinding its guidance are expected to have little or no direct practical impact.

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