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EEOC pulls the plug on decades-old affirmative action guidance: What employers should do now

7/6/26

By: Sunshine Fellows

In another significant shift in federal employment policy, the U.S. Equal Employment Opportunity Commission (EEOC) has moved to rescind its longstanding guidance on voluntary affirmative action under Title VII. The guidance, dating back to 1979, explained when employers could adopt lawful voluntary affirmative action plans and offered a measure of comfort to employers that relied on the agency’s interpretation.

Although the proposal does not change Title VII or existing Supreme Court precedent, it sends a clear message that the EEOC intends to take a different approach to affirmative action and diversity-related employment practices.

A significant policy shift

For nearly five decades, the EEOC’s guidance described circumstances in which employers could voluntarily implement narrowly tailored affirmative action measures to address prior discrimination, adverse impact, or historically underrepresented workforces. By rescinding that guidance, the agency is removing its own interpretive roadmap and signaling that it no longer views those principles as reflecting its enforcement priorities.

The move is consistent with the broader federal trend away from race-and sex-conscious employment initiatives. It follows the repeal of Executive Order 11246’s affirmative action requirements for federal contractors and continued scrutiny of workplace DEI programs across the federal government.

What hasn’t changed

The rescission is important, but employers should avoid overstating its legal effect. Title VII has not changed, and the EEOC cannot overturn Supreme Court precedent through guidance alone. Decisions such as United Steelworkers v. Weber and Johnson v. Transportation Agency remain controlling law. What has changed is the disappearance of the EEOC’s longstanding guidance, and with it, a regulatory framework many employers relied upon when evaluating voluntary affirmative action efforts.

What employers should do now

This development is an appropriate time for employers to reassess employment policies and DEI initiatives with counsel. Employers should review any programs that reference race, sex, or other protected characteristics; evaluate whether recruiting, internship, mentorship, leadership development, or promotion initiatives remain legally defensible; and ensure that employment decisions are supported by objective, job-related criteria.

Employers should also remember that this is only one piece of a rapidly evolving legal landscape. Federal enforcement priorities continue to shift, while state laws and private litigation risks remain very much in play. A thoughtful legal review now can help reduce risk before policies are tested by an agency investigation or lawsuit.

Employer takeaway

The EEOC’s proposal does not rewrite Title VII, but it is another unmistakable signal that the rules governing affirmative action and DEI programs continue to evolve. Employers should not assume that longstanding practices remain insulated simply because they were previously consistent with EEOC guidance.

Now is an ideal time to revisit existing policies, document legitimate business justifications for employment decisions, and work with experienced employment counsel to ensure workplace initiatives align with today’s enforcement environment.

For more information on this topic, please contact Sunshine Fellows or your local FMG relationship partner.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.