On June 29, the Equal Employment Opportunity Commission (EEOC) voted to rescind decades-old guidance on affirmative action plans for businesses. These guidelines have been in place since 1979, together with a related compliance manual advising employers on their use. The materials provided a roadmap for businesses to implement affirmative action plans while remaining compliant with Title VII of the Civil Rights Act of 1964
According to EEOC Chair Andrea Lucas, “the Commission’s rescission of the Affirmative Action Guidelines is consistent with the text of Title VII and Supreme Court precedent.” The EEOC states that the manual and the guidelines were “made obsolete” by the intervening years of “Supreme Court case law and key developments in the lower courts.”
The sole Democrat on the Commission disagrees. In her own statement, Commissioner Kalpaga Kotagal calls it “the loss of a valuable, and narrowly targeted, tool” that amounts to “yet another attack by this administration on civil rights protections for workers.” Former federal labor officials, now organized as the EEO Leaders, have written to rebut the EEOC’s grounds for its decision and to raise awareness of potential legal risks to employers.
The Rescinded Guidelines and Manual
Title VII of the Civil Rights Act prohibits employment discrimination “because of [an] individual's race, color, religion, sex, or national origin.” As Title VII is a complex law with wide-ranging regulations and case law, employers have always needed guidance to remain compliant and defend against discrimination claims.
The EEOC’s June 29 actions rescinded two major pieces of Title VII guidance for employers:
- “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964 as Amended,” legal guidelines for employers’ voluntary affirmative action plans. This is currently available in its previous form on Findlaw: 29 C.F.R. §1608.1 through 1608.12
- Compliance Manual Section 607 on Affirmative Action, which served as an employer’s guide based on those regulations. (See the archived version here)
As the Compliance Manual put it, the rescinded guidelines “address what appears to be a conflict between the statutory prohibition against considering race, sex, and national origin … and the need, often through affirmative action, to eliminate discrimination and to correct the effects of prior discrimination.” According to those guidelines, an employer’s affirmative action plan must contain “three elements: a reasonable self analysis; a reasonable basis for concluding action is appropriate; and reasonable action.”
In part, the former guidelines required employers to determine whether their policies might cause employment discrimination through disparate impact or disparate treatment. In particular, they directed employers to look for whether facially neutral rules effectively push out workers of a particular race, gender, or other protected characteristic.
The Decision to Rescind the Guidance
The EEOC’s actions come in the context of the Trump administration’s decision to refocus its civil rights enforcement choices. Statements and reports indicate that federal civil rights enforcement currently prioritizes complaints of discrimination against religious groups and members of racial and gender majorities. EEOC Chair Andrea Lucas, who also belongs to the federal Task Force to Eradicate Anti-Christian Bias, describes the EEOC’s recent work as “upholding the American promise of colorblind equality under the law.”
The former labor officials of EEO Leaders—including five former EEO commissioners — issued a statement addressing the vote to rescind the guidance. In it, they state that the Supreme Court has not actually overturned the relevant cases, United Steelworkers v. Weber and Johnson v. Transportation Agency. As such, according to the officials, “[the] rescission will only expose employers to more legal risk if they choose to adopt such plans going forward.”
A related June 2026 opinion from the current Department of Justice asserts that the longstanding guidelines on disparate impact “embrace an unconstitutional reading of Title VII.” Invoking the recent Callais decision on voting rights, the opinion says that the “guidelines purport to authorize racial ‘goals and timetables’ without any definite stopping point.”
In their own statement, EEO Leaders reject the DOJ’s analysis. They note that it fails to recognize that no Supreme Court cases have actually overturned the disparate-impact laws. Rather (they say) it relies heavily on a concurrence—not an opinion—written by Justice Scalia for one 2009 Supreme Court case. In their words, “EEOC and DOJ nonenforcement of Title VII disparate impact does not alter the statute, which remains in full force. The DOJ opinion provides faulty legal advice that, if followed, may expose employers to greater litigation risk.”
While the political landscape shifts, federal court judges and legislators may or may not follow the current administration’s priorities. As always, employers would be wise to work closely with their counsel on any possible questions of civil rights law.
