EEOC Revocation of Affirmative Action Guidelines and The Impact on Employment Discrimination Claims

On June 29, 2026, the Equal Employment Opportunity Commission (EEOC) voted to rescind its 1979 Affirmative Action Guidelines and the related Compliance Manual on Affirmative Action.¹ The Commission based the decision on their findings that the Affirmative Action Guidelines no longer conformed with the text of Title VII of the Civil Rights Act of 1964 and contradicted Supreme Court precedents that followed the issuance of the guidelines.² The current EEOC determined that the voluntary affirmative action plans contradicted with the Supreme Court’s interpretation that Title VII extends the same protections to every individual.³ The EEOC published its final rule on July 6, 2026, removing the Affirmative Action Guidelines from the Code of Federal Regulations immediately.

The Affirmative Action Guidelines, formally known as “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as Amended” served as the framework for private employers to voluntarily adopt affirmative action plans in accordance with Title VII. Importantly, the interpretative guidelines served as a safe harbor to allow employers the right to defend against claims of unlawful employment practices. These guidelines additionally allowed employers to implement affirmative action plans that: corrected an imbalance in traditionally segregated job categories, were temporary and flexible, and did not unnecessarily limit nonminority employees’ interests.⁴

Adopted in 1981, the Compliance Manual Section 607 on Affirmative Action promoted the Guidelines and outlined EEOC’s enforcement policies for voluntary affirmative action plans. Specifically, this section detailed what the EEOC considered conflict between Title VII’s statutory prohibitions and the need to eliminate discrimination to be.⁵ The Compliance Manual offered guidance on defensible affirmative action plans, requiring a reasonable self-analysis, a reasonable basis for concluding the award was a warranted, and a reasonable action tailored to the problem.

Why Does This Matter for Employers?

These guidelines served the purpose of both offering employers legal protection and resolving any uncertainty surrounding “reverse discrimination.⁶ Without these guidelines the EEOC has eliminated its sole roadmap for employers to look toward when attempting to demonstrate that a permissible plan was reasonable. This rescission does not alter the importance and legality of Title VII, nor does it change SCOTUS decisions in which few circumstances are recognized as allowing for lawful voluntary affirmative action plans.⁷ Affirmative action is not categorically unlawful after this recission, but the protection of EEOC guidance for employers with affirmative action programs no longer exists and the broader field of federal employment policy and its enforcement remains subject to change. The Guidelines had led employers to struct their diversity programs in a way to protect themselves from Title VII challenges, and now that the guidelines have been rescinded employers no longer can rely on the Affirmative Action Guidelines as protection.

Following this revocation of the EEOC guidelines, employers who currently maintain an affirmative action plan should review their programs and assure they have a legal basis and conform with existing law rather than the agency guidance. The underlying federal laws have not changed, so employers still need to comply with the prohibition of employment discrimination. Additionally, state, and local laws still exist and touch on anti-discrimination in the employment context. Employers who extend into multiple states should evaluate their framework in a broader jurisdictional sense and investigate whether these laws impose obligations beyond those of the federal government. Due to the recent change in policy, employers with race or sex based conscious programs may need to determine if their diversity program relied on the guidance from Title VII challenges outlined in the Guidelines. Also, given the recent change in policy it is in employers’ best interest to document any nondiscriminatory basis for employment-related actions, and ensure all decisions are based on qualifications and merit for the respective job and not structured around protected characteristic-based preferences that may be perceived as problematic.

How CMBG³ Can Help

Employers may want to take a closer look at their existing programs or plan for continued uncertainty relating to employment law and affirmative action. Our team is here to help you address these or various other employment issues.

Nathanael E. Wright is a partner and a member of the Emerging Practice Group at CMBG³ and Eleanor Martin, who contributed to this article, is entering her third year at Suffolk University Law School.

Critical Questions About the EEOC Revocation of their Affirmative Action Guidelines

1.      What should multi‑state employers be especially cautious about now?

Multi‑state employers must evaluate DEI and affirmative action programs across all jurisdictions, because: state and local anti‑discrimination laws remain fully in effect; some states impose stricter or additional requirements beyond federal law and programs relying on the former EEOC safe harbor may now conflict with state‑level prohibitions or interpretations. Employers should ensure consistency, legal defensibility, and clear documentation across all locations.

2. How does this change affect “reverse discrimination” claims?

The rescission removes the EEOC’s prior framework that helped employers defend against claims alleging preferential treatment based on protected characteristics. Without the guidelines, plaintiffs may more aggressively challenge DEI or affirmative action programs as discriminatory. Result: Employers must be prepared to justify decisions strictly on neutral, job‑related criteria and maintain strong documentation.

3. Are voluntary affirmative action plans now unlawful?

Answer: No. The revocation does not make affirmative action categorically unlawful. Supreme Court precedent still recognizes narrow circumstances where voluntary affirmative action plans may be permissible—such as temporary, flexible measures designed to remedy a proven imbalance. However: Without EEOC guidance, employers face greater litigation risk because they no longer have a clear federal roadmap for structuring such plans.

1. The vote occurred on the on or about June 29th and was announced on the 30th.
2. See 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 [https://perma.cc/L7E8-ER49] (on file with author).  Title VII of the Civil Rights Act of 1964 prohibits employment-based discrimination based on race, color, religion, sex, and national origin.  Title VII of the Civil Rights Act of 1964 (1964).
3. See Ames v. Ohio Dep’t. of Youth Servs., 605 U.S. 303 (2025).  In this case, the Supreme Court held that Title VII provides the same protections for every individual, which the EEOC found to be contradictory of the premise of affirmative action.  See also Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023).  This Supreme Court decision upended precedent regarding affirmative action, permitting limited use of race in higher education admissions.  Id.  The Court held that schools’ use of race in admissions violated the Constitution’s equal protection clause.  Id.
4. See C.F.R. § 1608 (1979).
5. See CUPA-HR, EEOC Votes to Rescind Affirmative Action Guidelines, (July 1, 2026) https://www.cupahr.org/resource/eeoc-votes-to-rescind-affirmative-action-guidelines/ [https://perma.cc/D9KQ-EWTD].
6. See United Steelworks v. Weber, 443 U.S. 193, 197 (1979) (holding that Title VII does not prohibit race-conscious affirmative action plans); Johnson v. Transp. Agency, 480 U.S. 616 (1987) (discussing how race can be considered in hiring was consistent with Title VII’s objectives).  Both of these cases permit voluntary affirmative action plans in limited circumstances, falling outside the EEOC’s established Affirmative Action Guidelines.