On 30 June 2026, the U.S. Equal Employment Opportunity Commission announced it had rescinded two longstanding policy documents governing voluntary affirmative action under Title VII of the Civil Rights Act of 1964.
The rescinded documents include the interpretive guidelines titled “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964 as Amended,” codified at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, and the related Compliance Manual Section 607 on Affirmative Action.
The Guidelines were originally adopted in 1979 to give employers a structured framework for implementing voluntary affirmative action plans without violating Title VII’s core prohibitions.
They addressed a fundamental question that Title VII’s text left unanswered, namely when employers could voluntarily improve opportunities for underrepresented groups without running afoul of the law.
The EEOC had identified three elements a permissible voluntary affirmative action plan should contain, beginning with a reasonable self-analysis of the workforce to identify actual or potential adverse impact.
An employer also needed a reasonable basis for concluding that corrective measures were warranted, and any remedial steps had to reasonably relate to what the self-analysis identified.
Beyond their structural function, the Guidelines also served as a defensive tool, with Part 1608 characterising itself as a written interpretation under Section 713(b)(1) of Title VII.
Following a commission vote on 29 June, EEOC Chair Andrea Lucas characterised the action as a reaffirmation that Title VII’s protections “apply equally to all American workers.”
The Commission stated that the Guidelines were inconsistent with the text of Title VII and with Supreme Court precedent that has developed since 1979, and separately deemed the Compliance Manual obsolete.
The rescission does not alter Title VII itself, and Supreme Court decisions including United Steelworkers v. Weber and Johnson v. Transportation Agency remain binding law permitting voluntary private-sector affirmative action.
However, the removal of the Commission-backed framework strips employers of an important institutional reference point when structuring or defending affirmative action programmes.
The Supreme Court’s 2023 decision in Students for Fair Admissions, while arising in the context of university admissions, has already generated significant private-sector litigation targeting diversity initiatives including fellowship programmes and supplier diversity efforts.
Employers that structured voluntary affirmative action plans in good-faith reliance on the Guidelines before 29 June may retain a Section 713(b)(1) defence, though the EEOC’s position that the Guidelines contradicted Title VII could complicate such arguments.
Legal analysts at Sheppard, Mullin, Richter and Hampton advise employers to carefully document their good-faith reliance in anticipation of any future proceedings and to assess whether existing programmes can be independently justified under applicable precedent.
Employers are also urged to review obligations under state and local law, as the EEOC’s rescission does not affect requirements that may exist at those levels.