EEOC Rescinds Affirmative Action Guidelines Under Title VII

What Happened

On June 29, 2026, the Equal Employment Opportunity Commission (EEOC) voted to rescind two policy documents in place for roughly 40 years: the Guidelines on Affirmative Action Appropriate Under Title VII (29 C.F.R. Part 1608) and Compliance Manual Section 607 on Affirmative Action. These documents provided the EEOC’s framework for voluntary employer affirmative action plans under Title VII. They are no longer in effect.

The commission found the guidelines conflicted with Title VII’s text and with Supreme Court precedent developed over the past four decades. Chair Andrea Lucas stated the rescission “reaffirms that Title VII’s protections apply equally to all American workers.”

What the Original Guidelines Did

Adopted in 1979 as 29 CFR 1608, the guidelines encouraged voluntary employer efforts to improve opportunities for minorities and women while shielding those employers from “reverse discrimination” claims. They required a reasonable self-analysis, a reasonable basis for action, and measures tailored to the identified problem. Employers that adopted written plans in good-faith reliance on the guidelines could invoke the Section 713(b)(1) defense under Title VII.

Impact on Employers

The rescission eliminates a long-standing safe harbor. Employers with voluntary, race- or sex-conscious programs can no longer rely on the guidelines as a Section 713(b)(1) good-faith defense. Title VII itself has not changed, and Supreme Court precedent recognizing limited lawful affirmative action remains intact. However, the EEOC’s enforcement posture has shifted—the agency will focus on policies framed as diversity, equity, and inclusion (“DEI”) initiatives, which is in line with the Trump administration’s continued focus on these programs.

State and local affirmative action statutes, public contracting rules and court-ordered remedial programs are not affected by this action and remain independently enforceable.

This rescission aligns with the Trump administration’s broader approach to DEI. The EEOC’s 2026 enforcement priorities signal increased scrutiny of any program that considers protected characteristics in employment decisions.

Employers should view this as part of a sustained federal shift, not an isolated regulatory change.

Three Steps Employers Should Take Now

1. Audit existing programs. Review all affirmative action plans and diversity-related programs that consider protected characteristics. Confirm each has a legal basis independent of the rescinded guidelines, is limited in scope and duration, and is well-documented.
   
2. Ground programs in current law. Ensure defensibility rests on the statutory text of Title VII and Supreme Court precedent—not on agency guidance that no longer exists. Programs that relied primarily on the EEOC framework warrant immediate attention.
   
3. Engage employment counsel. Any program involving protected-characteristic-conscious decision-making should be evaluated for vulnerabilities under the current enforcement environment.

This document is intended to provide you with general information regarding the EEOC’s policy shifts around affirmative action. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.