EEOC Proposes to Rescind Employer Voluntary Affirmative Action Plan Guidance

Takeaways

• The EEOC recently proposed rescinding its 1979 interpretive rule on voluntary affirmative action under Title VII.
• The existing guidance addresses when employers may adopt voluntary affirmative action plans and when they may rely on the EEOC’s interpretation as a defense under Title VII. 
• The proposal appears to follow broader federal deregulatory activity and increased scrutiny of programs and initiatives related to protected characteristics.

Related links

• EEOC OIRA Proposal Submission (May 27, 2026)
• 29 C.F.R. Part 1608

Article

Employers may see changes to long-standing federal guidance on voluntary affirmative action plans. On May 27, 2026, the Equal Employment Opportunity Commission (EEOC) submitted a proposal to the Office of Information and Regulatory Affairs (OIRA) seeking to rescind its 1979 interpretive rule, 29 C.F.R. Part 1608, “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as Amended.”

Proposal

The EEOC’s regulatory proposal could affect how employers evaluate and defend voluntary affirmative action plans.

The current EEOC guidance describes circumstances in which employers may voluntarily adopt affirmative action measures to address workforce imbalances or barriers to equal employment opportunity (EEO). It also sets out the conditions under which the EEOC considers such measures appropriate, including reasonable self-analysis, a reasonable basis for concluding action is warranted, and remedial measures reasonably tied to the issues identified.

In addition, the agency’s current guidance addresses when an employer may rely on the EEOC’s interpretation as a potential safe harbor under Title VII, including where the employer acted in good faith, in conformity with and in reliance on the agency’s written interpretation or opinion.

OIRA review does not eliminate the current guidance. If the proposal advances, the EEOC would need to take further action before any rescission becomes effective. The EEOC’s proposal also leaves Title VII unchanged. It does not alter United Steelworkers v. Weber, 443 U.S. 193 (1979), or Johnson v. Transportation Agency, 480 U.S. 616 (1987), in which the U.S. Supreme Court recognized that Title VII may not prohibit certain voluntary affirmative action plans in limited circumstances.

Although the proposal does not change Title VII, Weber, or Johnson, employers evaluating voluntary affirmative action measures should recognize that courts, regulators, and litigants are increasingly scrutinizing practices that consider protected characteristics.

Broader Administrative Context

The EEOC does not explain the basis for the requested rescission in the public submission to OIRA. The agency’s proposal, however, follows recent federal deregulatory activity and reassessment of race- and sex-conscious policies and practices, including diversity, equity, and inclusion (DEI) initiatives and other affirmative action programs.

In January 2025, President Donald Trump issued Executive Order (EO) 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” EO 14173 revoked EO 11246, which required covered federal contractors and subcontractors to maintain affirmative action programs and comply with related obligations. These EOs were among a number of administrative actions intended to address “illegal” DEI, disparate impact liability, and other enforcement efforts.

On May 14, 2026, the EEOC submitted a separate proposal to OIRA to rescind federal EEO reporting and recordkeeping obligations, including the EEO-1 reporting framework and other obligations related to Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Pregnant Workers Fairness Act.

Next Steps

Although the proposal focuses on voluntary affirmative action guidance, it comes amid heightened scrutiny by government agencies and private litigants of employment practices that reference protected characteristics.

The timing and effect of the EEOC’s latest proposal remain uncertain. A rescission of the rule could affect how the EEOC evaluates voluntary affirmative action plans and whether employers may continue to rely on this interpretation in future Title VII matters (particularly on the voluntary guidelines as a litigation defense). Rescission, by itself, would not amend Title VII or eliminate employers’ obligations under other federal, state, or local requirements. Whether finalized or modified during the regulatory process, the proposal is likely to remain part of a broader conversation about the role of voluntary affirmative action practices under Title VII.

Employers with voluntary affirmative action plans or initiatives, DEI-related programs, and representation-focused employment practices should continue monitoring developments and evaluating those programs in light of evolving agency positions and enforcement trends.

If you have questions about affirmative action, DEI, or the EEOC’s recent actions, please contact a Jackson Lewis attorney.