On June 29, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) voted to withdraw two longstanding interpretive documents addressing voluntary affirmative action under Title VII of the Civil Rights Act of 1964. The EEOC announced its action the following day, and a final interpretive rule became effective on July 6, 2026, applicable as of June 29. The action continues a broader trend of increased federal scrutiny of employment practices that consider protected characteristics, including certain DEI initiatives and voluntary affirmative action programs.
What Changed?
For more than forty years, the EEOC’s Interpretive Guidelines, “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as Amended,” and the related Compliance Manual Section 607 on Affirmative Action (collectively, the “Guidelines”) described the circumstances under which voluntary, race- or sex-conscious affirmative action plans could be consistent with Title VII. The Guidelines generally contemplated a reasonable workforce self-analysis, a reasonable basis for corrective action, and measures reasonably related to the problem identified. They also addressed how the EEOC would evaluate affirmative action programs adopted under the now-revoked Executive Order No. 11246, through EEOC conciliation or settlement, under state or local law, or pursuant to a court order.
The EEOC has now withdrawn both documents. The Commission concluded that the Guidelines no longer reflect the text of Title VII and conflict with Supreme Court precedent developed after the Guidelines were issued.
What Didn’t Change?
The rescission does not amend Title VII, and it does not overrule existing Supreme Court precedent. Decisions such as United Steelworkers v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987) – which recognized limited circumstances in which carefully structured voluntary affirmative action plans may be permissible under Title VII – remain controlling Supreme Court precedent. The rescission also does not displace independently applicable obligations arising under state or local law, court orders, consent decrees, or other legal requirements. Federal contractors should separately evaluate any continuing affirmative action obligations, including those applicable to protected veterans and individuals with disabilities. In short, the rescission removes the EEOC’s longstanding interpretive framework and signals a change in the agency’s enforcement approach; it does not amend Title VII or overrule controlling precedent.
Why Does It Matter?
Although the underlying law is unchanged, the practical significance of the rescission is real. The rescission itself is not retroactive: for conduct occurring before June 29, 2026, employers may still be able to invoke the Section 713(b)(1) good-faith defense, provided they can establish the plan’s other prerequisites. Going forward, however, employers can no longer structure voluntary affirmative action programs in reliance on the Guidelines and expect to invoke them as a good-faith defense under Section 713(b)(1) of Title VII for future conduct. More broadly, the rescission signals that the current EEOC is likely to apply increased scrutiny to affirmative action and DEI-related practices that consider race, sex, or another protected characteristic in employment decisions, even where those practices were previously understood to fit within the framework described by the Guidelines.
What Should Employers Do Now?
Employers with existing affirmative action programs, DEI initiatives, or related employment practices should consider taking the following steps:
- Inventory any existing voluntary affirmative action programs and determine whether they continue to have an independent legal basis and remain appropriately tailored in scope and duration.
- Review hiring, promotion, compensation, internship, and leadership-development programs for criteria that expressly or functionally consider protected characteristics.
- Confirm that recruiting and outreach initiatives are designed to expand qualified applicant pools, rather than to reserve opportunities or make employment decisions based on protected status.
- Evaluate written DEI policies and related communications to ensure they emphasize equal employment opportunity and documented, objective, job-related decision-making.
- Train executives, managers, recruiters, and HR professionals on the distinction between lawful outreach and employment decisions that impermissibly consider protected characteristics.
The rescission does not make every affirmative action or DEI initiative unlawful. It does, however, remove a longstanding EEOC framework on which employers may have relied and reinforces the need to distinguish lawful efforts to expand opportunity from employment decisions that confer a preference based on a protected characteristic. Employers maintaining these programs should review their legal basis, design, operation, and documentation before an EEOC charge or other challenge forces the issue.
For questions regarding the effect of the EEOC’s rescission or the review of an affirmative action or DEI program, please contact Michael A. Airdo at mairdo@airdowerwas.com, or Elizabeth M. Yanan at eyanan@airdowerwas.com.
