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On June 30th, 2026, the Equal Employment Opportunity Commission (EEOC) officially rescinded two longstanding documents relating to permissible affirmative action. The documents were part of the EEOC's guidance on affirmative action underTitle VII of the Civil Rights Act of 1964 (Title VII). Specifically, the items lived within Title VII’s regulatory guidelines on “appropriate” affirmative action under the statute, and section 607 of the law’s Compliance Manual. Both sections addressed the guidelines and the agency’s enforcement positions regarding permissible affirmative action and affirmative action plans. Earlier last month, in June 2026, the EEOC’s treatment of disparate impact claims was challenged by the U.S. Department of Justice (DOJ).
Title VII of the Civil Rights Act of 1964
In detail, Title VII compliance includes prohibiting employment discrimination based on federally protected classes such as race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information. The law makes it clear that it is unlawful for an employer to:
- fail or refuse to hire an applicant,
- discharge any employee, or
- otherwise discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment because of the individual’s race, color, religion, sex, or national origin.
In addition, the law requires employers to reasonably try to prevent and correct the behavior. Lastly, Title VII protects employees who object to discrimination from retaliation or any adverse employment action for exercising their rights.
What Is “Affirmative Action”?
Importantly, we must note that the rescinded guidance was created in 1979. Since that date, Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964 as Amended had not been edited or revised by any standing administration. As mentioned earlier, the EEOC Compliance Manual section 607 on affirmative action was also eliminated. Previously, in those documents, “affirmative action” meant “a justification for a policy or practice based on race, sex, or national origin.” The agency was referring to any circumstances in which an employer could prefer one individual over another based on race, sex, or national origin. According to the EEOC, when used today, “affirmative action” often refers to tools available to businesses to ensure equal employment opportunities without engaging in any preference.
Background on the Now Eliminated Affirmative Action Guidelines
Additionally, according to the EEOC, the language used in the guidance and the Compliance Manual permitted affirmative action plans only under specific circumstances of federal equal employment opportunity laws. For example, these plans could only be used when designed to remedy past or present discrimination. Affirmative action could also be in place to address potential imbalances in traditionally segregated job categories. However, any plans had to be carefully structured to avoid unlawfully disadvantaging other employees. To be lawful, an affirmative action plan had to be:
- temporary,
- flexible,
- narrowly tailored, and
- designed to infringe on the rights of non‑
Finally, the language used in the guidance and the Compliance Manual provided a “safe harbor” under section 713(b)(1) of the Civil Rights Act. According to that section, an employer may defend itself in an unlawful employment practice proceeding by demonstrating that it was relying in good faith on written guidance from the EEOC. Now, after the rescission of the guidance, that good-faith reliance defense no longer exists.
Why Did the EEOC Vote to Remove the Policies?
The current EEOC found that the guidance did not align with the text of Title VII. Also, the agency believed that it and the Compliance Manual contradicted Supreme Court case law that has developed over the four decades since the guidelines were issued. According to the EEOC, the purpose of the release in 1979 was to protect “employers, labor organizations, and other persons subject to Title VII [who] have changed their employment practices and systems to improve employment opportunities for minorities and women” via “race, sex, or national origin conscious ... decisions.” Yet, the Supreme Court has held that Title VII provides the “same protections for every ‘individual.’”
Statement from 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,” said EEOC Chair Andrea Lucas. “As our nation approaches its 250th birthday, we are reminded that the Founders’ vision rested on the enduring principle that every individual is created equal and therefore is entitled to equal treatment under the law. This week's action reaffirms that Title VII's protections apply equally to all American workers and that equal opportunity remains a defining commitment of our democracy.”
Employer Takeaways
In conclusion, it is important to recognize that over the past 40 years, in several cases, the U.S. Supreme Court has held that Title VII permits certain voluntary affirmative action plans in limited circumstances. The elimination of the guidance document and the Compliance Manual section does not change that fact. This recent update also signals that the Trump administration will be focusing further on the elimination of race and sex being used for workplace decisions. Employers who use affirmative action in their hiring and decision-making processes may want to consult their legal counsel to ensure compliance with Title VII and other federal, state, and municipal civil rights laws.
To assist employers, WorkWise Compliance now offers a selection of monthly and annual compliance plans to help businesses address their legal obligations under workplace laws, including virtual consulting services on important labor law compliance topics. These services can help affected businesses address current and proposed EEOC regulations on proper labor practices.
