EEOC Rescinds Affirmative Action Guidance: What Employers Need to Know – July 2026

Effective July 6, 2026, and applicable as of June 29, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) rescinded the affirmative action guidelines (“Affirmative Action Guidance” or “Guidance”) formerly codified at 29 C.F.R. Part 1608 and the related Compliance Manual section addressing voluntary affirmative action under Title VII.¹   The EEOC initially issued the Affirmative Action Guidance in 1979 to provide employers with a safe harbor and encourage self-evaluation and correction of disparities that the US Supreme Court, in its 1971 opinion Griggs vs. Duke Power, cautioned could lead to disparate impact liability for employers.  Explaining the recission, the current EEOC stated that the Affirmative Action Guidance conflicts with Title VII’s text and recent intervening Supreme Court precedent.²

The update is significant but not surprising as the Administration has consistently explained its opposition to affirmative action and disparate impact theory and its prioritization of eliminating diversity, equity, and inclusion activities, but it does not mean that every voluntary affirmative action plan is now per se unlawful. The rescission removes the EEOC’s prior roadmap—and the good-faith reliance employers could point to when following it—but it does not amend Title VII or overrule Supreme Court employment decisions that still leave narrow room for carefully designed remedial plans.  Practically, however, the recission of the guidance will continue to diminish employer appetites to take risk in these areas. 

Title VII still controls. The EEOC’s rescission signals that the Commission will take a harder look at programs that account for protected characteristics, even when those programs are framed as voluntary affirmative action. Employers also should no longer assume that Part 1608 remains available as an agency-endorsed safe harbor for future reliance.³

Still, the Supreme Court’s key employment cases remain in place. In United Steelworkers v. Weber, the Court upheld a temporary plan addressing a conspicuous racial imbalance in traditionally segregated craft jobs where the plan did not unnecessarily trammel white employees’ interests.⁴ In Johnson v. Transportation Agency, the Court upheld a flexible, case-by-case plan that allowed sex to be considered as one factor for a traditionally segregated job category, without quotas or absolute bars.⁵ Those decisions have not been overruled.

A voluntary affirmative action plan therefore may still be defensible in limited circumstances if it is remedial (e.g. to remedy past discrimination), supported by a documented imbalance or barrier, temporary or periodically reviewed, flexible, and designed to avoid quotas or undue harm to others. The difference now is risk. Students for Fair Admissions adds pressure, but it did not decide a Title VII employment issue.⁶ The case addressed race-conscious education admissions under the Equal Protection Clause and Title VI. Even so, it has accelerated scrutiny of race-conscious decision-making and diversity, equity, and inclusion programs in employment, and the EEOC expressly invoked intervening Supreme Court precedent in explaining the rescission.⁷

Practically, employers should expect increased scrutiny of programs that use protected characteristics in eligibility, selection, scoring, preferences, or targets. However, employers still have tools to expand opportunity consistent with Title VII. Lower-risk options include broad outreach, structured interviews, validated selection criteria, mentorship programs open to all qualified employees, pay equity audits, bias training, and removal of other unnecessary barriers. Employers should use this EEOC recission as a reason to review affected programs and tighten documentation, guardrails, and messaging.

• In connection with counsel, audit affirmative action, diversity, equity, inclusion, recruiting, mentorship, and promotion programs for protected-characteristic-based eligibility, preferences, scoring, or selection criteria.
• For any protected-characteristic programs, in connection with counsel, confirm the legal basis, supporting data, remedial purpose, duration, review cadence, and safeguards against quotas or undue harm.
• Refresh manager talking points and reframe higher-risk initiatives around equal opportunity, barrier removal, broad outreach, and objective selection criteria.

1. Rescission of Affirmative Action Interpretive Guidelines, 91 Fed. Reg. 40879 (July 6, 2026) (effective July 6, 2026, and applicable June 29, 2026).
   1. https://www.federalregister.gov/documents/2026/07/06/2026-13637/rescission-of-guidelines-on-affirmative-action-appropriate-under-title-vii-of-the-civil-rights-act
2. U.S. Equal Emp. Opportunity Comm’n, EEOC Votes to Rescind Affirmative Action Interpretive Guidelines and Related Compliance Manual (June 30, 2026).
   1. https://www.eeoc.gov/newsroom/eeoc-votes-rescind-affirmative-action-interpretive-guidelines-and-related-compliance
3. 29 C.F.R. § 1608.2 (rescinded 2026); 42 U.S.C. § 2000e-12(b)(1).
4. United Steelworkers of Am. v. Weber, 443 U.S. 193, 208–09 (1979).
5. Johnson v. Transp. Agency, 480 U.S. 616, 637–42 (1987).
6. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).
7. See U.S. Equal Emp. Opportunity Comm’n, EEOC Votes to Rescind Affirmative Action Interpretive Guidelines and Related Compliance Manual (June 30, 2026); Andrea R. Lucas, Comm’r, U.S. Equal Emp. Opportunity Comm’n, The Future of DEI, Disparate Impact, and EO 11246 After Students for Fair Admissions v. Harvard/UNC (May 22, 2024).
   1. https://www.eeoc.gov/future-dei-disparate-impact-and-eo-11246-after-students-fair-admissions-v-harvardunc#_ftn1

* This article also includes contributions by Riley Breen, Summer Associate (a Michael Best professional not admitted to practice law).