What the EEOC’s Affirmative Action Guidance Rescission Means for Employers

In June of 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind two policy documents: Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964 As Amended, which served as the Commission’s interpretive guidelines on applicable affirmative action as it relates to the Act, and Section 607 of the Compliance Manual on Affirmative Action.

With these policies spanning over 4 decades, this change appears to signal a shift toward increased scrutiny of programs relating to protected classes by the federal government. The rescission is also consistent with the EEOC's National Enforcement Plan for 2025–2029, which identifies diversity, equity, and inclusion ("DEI") initiatives — and similar programs, however labeled — as an enforcement priority. It is important for employers to review affirmative action plans and diversity initiatives to ensure they remain lawful and defensible under current federal law.

What this Means for Employers:

These policy documents guided that voluntary affirmative action plans were permitted under federal law to either remedy past or present discrimination or to address imbalances in segregated job categories so that other employees were not unlawfully disadvantaged. These policies explained that such plans must be temporary, flexible and narrowly tailored so as to not unnecessarily hinder the rights of those that the plans did not apply to. Further, the Commission’s guidelines allowed employers to defend against unlawful employment practice claims by showing good-faith reliance on written EEOC guidance. However, with the guidance rescinded, that defense is no longer available for affirmative action decisions going forward.

Despite this change, the Supreme Court’s prior rulings still stand and permit limited voluntary affirmative action plans that are narrowly tailored. United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987). The rescission does not [X1.1]automatically invalidate state or local affirmative-action requirements, although employers should evaluate how those obligations interact with Title VII.

Action Items:

Employers are recommended to review DEI-related programs, hiring practices, and affirmative action policies in light of this change that will come into effect through a forthcoming Federal Register notice;
For those policies not required by law, document the basis for such programs that reference protected classes such as sex, race, or national origin;
Evaluate how to defend voluntary affirmative action plans and consider changes where such policies may not be strongly defended;
Meet with legal counsel to ensure your organization’s programs and policies are supported by current legal authority, and, where appropriate, update any written plans, communications, or training materials that reference this guidance.