EEOC Rescinds Affirmative Action Guidelines: What The Commission’s Vote Means For Employers With Voluntary Affirmative Action Plans

On June 30, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced it had rescinded two longstanding policy documents concerning voluntary affirmative action under Title VII of the Civil Rights Act of 1964. First, the interpretive guidelines titled “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964 as Amended,” codified at 29 C.F.R. Part 1608. Second, the related Compliance Manual Section 607 on Affirmative Action (collectively, the “Guidelines”). Employers that have relied on the Guidelines as a framework for structuring and defending voluntary affirmative action plans face a materially different regulatory landscape.

Background: The 1979 Affirmative Action Guidelines and Part 1608

The Guidelines were adopted in 1979 to provide employers and entities subject to Title VII with a structured framework for implementing voluntary affirmative action plans. The Guidelines addressed a practical question that Title VII’s text left unanswered: When can an employer voluntarily take steps to improve employment opportunities for underrepresented groups without violating Title VII’s prohibition on race, color, religion, sex, or national origin discrimination?

In the Guidelines, the EEOC identified three elements a permissible voluntary affirmative action plan should contain. One, the employer should conduct a reasonable self-analysis of its workforce to determine whether employment practices resulted in actual or potential adverse impact. Two, the employer needs a reasonable basis for concluding that corrective measures are warranted. Three, the remedial measures must reasonably relate to the problems the self-analysis identified.

The Guidelines also served a defensive function. Part 1608 characterized itself as a “written interpretation and opinion” of the EEOC under Section 713(b)(1) of Title VII. That designation carried practical significance. Specifically, employers that took action in good-faith conformity with and reliance on the Guidelines could invoke such reliance as a defense in subsequent Title VII proceedings—even if the EEOC later revised or withdrew its interpretation.

The EEOC Rescinds the Guidelines

After a vote on June 29, the EEOC eliminated both the interpretive guidelines and the accompanying Compliance Manual. When announcing the rescission on June 30, the EEOC stated that the Guidelines were inconsistent with the text of Title VII and with Supreme Court precedent that has developed in the decades since the Guidelines were first issued. EEOC Chair Andrea Lucas characterized the Commission’s action as a reaffirmation that Title VII’s protections “apply equally to all American workers” and that the statute provides identical protections for every individual, regardless of race, sex, or national origin. The Commission separately determined that the Compliance Manual on Affirmative Action had been rendered obsolete by the rescission of the underlying Guidelines and by judicial developments.

Title VII Precedent Remains, But the Regulatory Framework Is Gone

To be clear, the EEOC’s rescission does not amend Title VII or modify or overrule existing Supreme Court precedent. In United Steelworkers v. Weber, 443 U.S. 193 (1979), the Court held that Title VII does not categorically prohibit voluntary, private-sector affirmative action plans. The Court extended that reasoning in Johnson v. Transportation Agency, 480 U.S. 616 (1987), sustaining a plan that considered sex as a factor in a promotion decision. Those decisions remain binding law.

But the practical environment in which employers operate has shifted. The EEOC’s rescission of the Guidelines removes the Commission-backed framework that employers could previously point to when structuring and defending affirmative action programs. Further, the Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College—while arising in the context of university admissions—has had ripples throughout the private sector because of its emphasis on equal treatment principles. Although Students for Fair Admissions did not directly interpret Title VII or address employer DEI programs, its reasoning has been invoked in a sharp uptick of litigation and regulatory challenges targeting private-sector diversity initiatives, including fellowship programs, mentorship opportunities, and supplier diversity efforts. With the EEOC’s rescission of the Guidelines now removing an additional layer of institutional support, employers operating voluntary affirmative action programs should expect that litigation risk in this space will only increase.

The June 29 vote represents a final agency action. The Guidelines and the related Compliance Manual section are no longer in effect. Employers that previously structured voluntary affirmative action plans in reliance thereon should assume the EEOC will no longer recognize that framework as a basis for evaluating or defending the legality of such plans.

Whether employers can rely on the Section 713(b)(1) safe harbor provision for conduct that occurred while the Guidelines were in effect is a separate, and unsettled, question. The text of Section 713(b)(1) expressly provides that good-faith reliance on EEOC interpretation “shall be a bar to any action or proceeding, even though after such act or omission such interpretation or opinion is modified or rescinded.” That language supports an argument that employers who previously structured voluntary affirmative action programs in good-faith conformity with the Guidelines before June 29 retain a defense. At the same time, the EEOC’s position that the Guidelines were, themselves, inconsistent with both Title VII and Supreme Court precedent may complicate any reliance argument. In sum, employers with programs previously structured under the Guidelines should carefully document their good-faith reliance in anticipation of any future proceeding.

Employer Takeaways

Monitor federal and state developments. Rescinding the Guidelines does not affect obligations arising under state or local law. Employers should assess local requirements to ensure compliance.

Assess existing affirmative action programs. Employers should identify all programs, policies, or practices that reference, rely on, or were structured under the Guidelines or that otherwise take race, sex, national origin, or other protected characteristics into account in hiring, promotion, or other employment decisions.

Evaluate legal justifications independently. With the EEOC Guidelines no longer available, employers maintaining voluntary affirmative action measures should assess whether those measures can be independently justified under applicable legal precedent.

Engage counsel before enforcement forces the issue. Employers that assess their programs now—before a charge, complaint, or litigation challenge—will be better positioned to make informed decisions about program design, modification, or discontinuation. Sheppard’s Labor and Employment team is actively monitoring these developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.