On June 29, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) rescinded its 1979 Guidelines on Affirmative Action Appropriate Under Title VII. The rescission, effective July 6, removes an agency framework that employers have relied upon for almost 50 years. Critically, employers can no longer use good-faith reliance on the Guidelines as a defense against employee discrimination claims.
In light of the EEOC's actions and the Trump administration's continued scrutiny of DEI initiatives, employers should review any program that gives an employment advantage based on a protected characteristic and confirm that hiring, promotion, compensation, training, and professional-development decisions comply with current law.
The 1979 Guidelines and the Rescission
The 1979 Guidelines described circumstances in which employers could voluntarily use race, sex, or national-origin-conscious measures to address past discrimination or workplace imbalances. Specifically, an affirmative action plan could be acceptable where an employer's analysis identified an actual or potential adverse impact on a certain group, the effects of prior discriminatory practices, or artificially limited applicant or promotion pools. Additionally, employers that acted in good faith and in conformity with and in reliance on the Guidelines could potentially invoke a statutory defense against Title VII liability.
The EEOC now says the Guidelines are inconsistent with Title VII and improperly focused on affirmative action benefiting women and racial minorities. The agency also concluded that the Guidelines did not account for an employer's duty to ensure equal application of Title VII's anti-discrimination protections to every individual.
What Does the Rescission Mean for Employers?
The most immediate change is the loss of reliance on the Guidelines as a defense. For employment actions taken after the rescission, an employer cannot defend a challenged decision by showing that it followed the former EEOC framework in good faith. Notably, the rescission is not retroactive, so the reliance defense may remain available for qualifying actions taken before the Guidelines were withdrawn.
The rescission also does not overrule Supreme Court decisions recognizing that Title VII may permit narrowly structured voluntary affirmative action plans in limited circumstances. For example, in United Steelworkers v. Weber, the Supreme Court upheld the employer's plan because it addressed the severe underrepresentation of Black employees in certain positions. The plan, which reserved 50% of openings in a specialized training program for Black employees, was also temporary and did not require the dismissal of any white employees.
The rescission of the Guidelines has no effect on Weber and similar Supreme Court precedent. Nevertheless, the change signals that the current EEOC is likely to scrutinize employment programs that consider race, sex, or national origin, even when the employer's objective is to improve representation or remedy past disparities.
Recommended Steps
Employers should consider taking the following steps now:
- Identify programs that use protected characteristics in decision making. Review hiring preferences, promotion goals, internships, mentorships, leadership programs, succession plans, bonuses, and other opportunities that may be restricted or allocated based on race, sex, or national origin.
- Distinguish inclusive efforts from preferential treatment. Broadening recruiting outreach, monitoring workforce data, enforcing anti-discrimination policies, and offering development opportunities to all qualified employees generally present different risks than reserving opportunities for particular demographic groups or narrowing an applicant pool.
- Review written plans and decision-making practices with counsel. Employers should tread carefully with affirmative action plans and ensure that they remain supported by both Title VII and Supreme Court precedent.
- Maintain Title VII compliance. The rescission of the Guidelines has not rewritten Title VII and related state laws, which continue to require that employers have legitimate, nondiscriminatory reasons for employment decisions. Employers should ensure managers and HR employees are trained to document those legitimate reasons properly.
Employers with questions about affirmative action plans, DEI, or Title VII compliance are encouraged to contact the authors or any member of Venable's Labor and Employment Group.