Publication
The U.S. Equal Employment Opportunity Commission Rescinds Affirmative Action Guidelines: What Employers Need to Know
On June 30, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind its 1979 Affirmative Action Guidelines along with the related Compliance Manual Section 607. This rescission eliminates the long-standing “safe harbor” framework that employers relied on for over four decades to structure voluntary affirmative action programs under Title VII of the Civil Rights Act of 1964 (Title VII). Below is an overview of the guidelines that the EEOC rescinded and how employers can consider responding.
What the EEOC Rescinded
The EEOC’s rescission affected two sets of guidance:1
- The 1979 Affirmative Action Guidelines (29 C.F.R. Part 1608). These guidelines, formally titled “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as Amended,” established the EEOC’s framework for when private employers could voluntarily adopt affirmative action plans consistent with Title VII. The guidelines permitted voluntary affirmative action plans that: (1) corrected a “manifest imbalance” in traditionally segregated job categories; (2) were temporary and flexible; and (3) did not unnecessarily limit nonminority employees’ interests. Critically, the guidelines also functioned as a safe harbor under Section 713(b)(1) of Title VII, which allows an employer to defend against an unlawful employment practice claim by demonstrating it acted in good-faith reliance on written EEOC guidance.
- EEOC Compliance Manual Section 607. Originally adopted in 1981, Section 607 elaborated on the 1979 Guidelines and laid out the EEOC’s enforcement approach for permissible affirmative action plans. Section 607 addressed what the EEOC described as an apparent conflict between Title VII’s statutory prohibition against considering race, sex, and national origin in employment decisions and the need to eliminate discrimination and correct the effects of prior discrimination. The Compliance Manual provided detailed guidance on the three required elements of a defensible affirmative action plan: (1) a reasonable self-analysis of the employer’s workforce to determine whether employment practices may cause or have caused employment discrimination; (2) a reasonable basis for concluding that action is appropriate, based on evidence of adverse impact, the lingering effects of prior discrimination, or artificially limited applicant or promotion pools; and (3) reasonable action such as remedial measures proportional to the identified problem that did not impose rigid quotas or absolute bars to advancement. Section 607 also addressed how the EEOC evaluated plans developed under Executive Order 11246, conciliation and settlement agreements, court orders, and state or local law.
EEOC Chair Andrea Lucas stated that the rescission of the Affirmative Action Guidelines “is consistent with the text of Title VII and Supreme Court precedent,” and that the Commission’s action reaffirms that Title VII’s protections apply equally to every American worker. The Commission further noted that Section 607 was “made obsolete” by the rescission of the 1979 Guidelines and by developments in the Supreme Court and lower court case law over the past four decades, despite that there have been no changes to the governing landmark decisions by the courts in the employment context.
Implications for Employers
- Underlying Federal Law Remains Unchanged: Importantly, the EEOC’s rescission of its own interpretive guidance does not change the underlying law for private employers. For example, the Supreme Court’s decisions in United Steelworkers v. Weber2 and Johnson v. Transportation Agency3 recognize that Title VII permits certain voluntary affirmative action plans in limited circumstances, and only the Court itself can revisit those holdings. Administrative rescission of agency guidance does not overturn Supreme Court precedent. That said, the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard College4, which struck down race-conscious university admissions, has shifted the focus onto voluntary affirmative action programs in the employment context. Certainly, federal contractors also face heightened enforcement and exposure to prosecution over what the President Donald Trump Administration has defined by executive order as “racially discriminatory Diversity, Equity, and Inclusion (DEI) activities.”5
- State and Local Laws Still Apply: Many states and localities also maintain independent anti-discrimination frameworks that separately may support certain diversity initiatives. Multistate employers may want to evaluate their obligations jurisdiction by jurisdiction.
- Loss of the “Safe Harbor”: Given the EEOC’s rescission of its former voluntary affirmative action guidance, employers that structured diversity programs to comply with the 1979 Guidelines and relied on that guidance as insulation against Title VII challenges can no longer invoke that framework. Any employer maintaining race or sex conscious programs may want to consider reassessing their legal basis.
Looking Ahead
The rescission marks a decisive shift in the federal government’s posture toward voluntary affirmative action. While diversity efforts are not categorically unlawful, the legal landscape around them has substantially altered. As the shifting landscape continues to evolve, proactive measures such as auditing existing programs, documenting the legitimate business rationale for workplace initiatives, and staying informed about legal developments may help employers better understand and manage potential risks.
How Employers Can Consider Responding
- Consider: (a) conducting a comprehensive review of any existing voluntary affirmative action plans, DEI-related programs, or initiatives that factor in race, sex, or other protected characteristics in employment decisions; and (b) evaluating race and sex neutral alternatives, such as broadened outreach and pipeline development, mentorship and training programs open to all groups, and structural changes to selection processes that do not involve disparate treatment based on protected characteristics.
- Consider documenting the legitimate, nondiscriminatory basis for any employment actions, and ensuring that employment decisions on any terms, conditions, or privileges of employment, including hiring, promotion, and compensation are based on job-related qualifications and merit.
- Consider monitoring applicable state and local anti-discrimination laws, which may independently support or require certain diversity initiatives and may impose obligations beyond federal law.
Future enforcement and litigation trends will depend on pending court decisions, potential shifts in EEOC composition, and possible Supreme Court revisiting of Weber and Johnson. Employers may want to consider planning for continued uncertainty now by taking a close look at existing programs, assessing business objectives, and staying apprised of legal developments.
Footnotes
-
Press Release, U.S. Equal Employment Opportunity Commission, “EEOC Votes to Rescind Affirmative Action Interpretive Guidelines and Related Compliance Manual” (June 30, 2026) https://www.eeoc.gov/newsroom/eeoc-votes-rescind-affirmative-action-interpretive-guidelines-and-related-compliance.
-
United Steelworkers v. Weber, 443 U.S. 193 (1979).
-
Johnson v. Transp. Agency, 480 U.S. 616 (1987).
-
Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023).
-
Exec. Order No. 14,398, Addressing DEI Discrimination by Federal Contractors, 91 Fed. Reg. 16,147 (Mar. 26, 2026); see also Brett W. Johnson, Jason Spitalnick, Sam Crockett Neel, Sarah E. Delaney, and Thomas Williams, (April 24, 2026), New Executive Order Creates False Claims Act Exposure for Federal Contractors Over DEI-Related Conduct
About Snell & Wilmer
Founded in 1938, Snell & Wilmer is a full-service business law firm with more than 500 attorneys practicing in 17 locations throughout the United States and in Mexico, including Phoenix and Tucson, Arizona; Los Angeles, Orange County, Palo Alto and San Diego, California; Denver, Colorado; Washington, D.C.; Boise, Idaho; Las Vegas and Reno-Tahoe, Nevada; Albuquerque, New Mexico; Portland, Oregon; Dallas, Texas; Salt Lake City, Utah; Seattle, Washington; and Los Cabos, Mexico. The firm represents clients ranging from large, publicly traded corporations to small businesses, individuals and entrepreneurs. For more information, visit swlaw.com.
