Labor & Employment Law Update

The Equal Employment Opportunity Commission (EEOC) formally rescinded the federal guidance employers have relied on for nearly 50 years when designing voluntary affirmative action plans under Title VII. In a June 29, 2026 vote, the EEOC voted to rescind the two documents that provide a long-standing roadmap for employers. This move follows the EEOC’s recent National Enforcement Plan (NEP), which signaled that the agency would treat race- and sex-conscious workplace programs as intentional discrimination.

For employers, the practical impact is significant. Although U.S. Supreme Court caselaw remains unchanged, the rescission narrows federal enforcement posture. As a result, employers with voluntary affirmative action plans, diversity initiatives, or other programs tied to protected characteristics should review those programs now to ensure they are justifiable under existing law.

What Guidance Did the EEOC Rescind?

On June 29, 2026 the EEOC voted 2-1 to rescind its 1979 interpretive guidance, Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, and the related Section 607 of the EEOC Compliance Manual. The EEOC concluded the guidance was inconsistent with the text of Title VII and Supreme Court precedent in Ames v. Ohio Department of Youth Services, pointing to the holding that Title VII provides the "same protections for every 'individual.'"

As with the NEP, the EEOC acted through a notation vote and canceled the public meeting scheduled on the item.

How the EEOC Rescission Fits Into Federal DEI and Title VII Enforcement Changes

This rescission is the latest step in a coordinated federal move toward a "color-blind" reading of Title VII:

• Executive Order 14281;
• The EEOC's June 4 NEP; and
• The June 9, 2026, Department of Justice Office of Legal Counsel opinion concluding that the EEOC's disparate-impact guidelines are unconstitutional.

The common theme is a redirection away from disparate-impact and race- or sex-conscious measures and toward intentional discrimination claims brought by any individual, majority, or minority.

What the EEOC Rescission Changes

The rescission withdraws the EEOC's framework and, as a practical matter, the good faith reliance defense tied to it. That defense is statutory. Section 713(b)(1) of Title VII protects an employer that relied in good faith on written EEOC guidance. Once it is gone, the defense loses its value regardless of the rule's technical regulatory status.

Does Title VII Still Permit Voluntary Affirmative Action Plans?

Two Supreme Court decisions still control, and the EEOC cannot overrule them. In United Steelworkers v. Weber and Johnson v. Transportation Agency, the Court held that Title VII permits certain narrowly tailored voluntary plans in limited circumstances. Those cases still say a carefully limited plan can be lawful, and only the Supreme Court can change that. The agency removed its own guidance and defense, not the underlying law.

Strategic Considerations for Employers Managing Affirmative Action and DEI Compliance

Employers with voluntary affirmative action plans, representation targets, or DEI initiatives tied to protected characteristics should reassess now, before a charge forces the review on a worse timeline. Key action items include:

• Determine whether each program is legally required (for example, certain federal contractor obligations) or voluntary. Document the factual and legal basis for any program referencing race, sex, or national origin.
• Review goals and metrics carefully. Avoid quotas, set-asides, preferences, and demographic targets, including "aspirational goals" that operate as proxies for them.
• Keep employment decisions individualized and merit-based, and review evaluation rubrics, diverse-slate requirements, and demographic data practices accordingly.
• Prepare for increased enforcement activity. Anticipate elevated charge risk (reverse discrimination and Commissioner-initiated charges), and watch related moves, including the EEOC's separate effort to rescind EEO-1 reporting and its forthcoming FY2030 strategic plan.