On June 30, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it rescinded two affirmative action guidance documents it adopted approximately 40 years ago — (1) the agency’s interpretive guidelines for appropriate affirmative action under Title VII of the Civil Rights Act and (2) the related section of the EEOC’s compliance manual, which discussed affirmative action. In its press release, the EEOC stated that the guidance no longer aligned with Title VII and Supreme Court case law that has developed over the past four decades.
Together, the two guidance documents described when voluntary affirmative action programs were permissible under Title VII. The guidance explained that employers could take affirmative action to correct the effects of prior discriminatory practices but had to do so according to a reasoned plan or program rather than a series of isolated events — and they couldn’t do so in a way that created new discriminatory effects. The guidance contained detailed instructions and examples of appropriate programs.
Importantly, the guidance also provided employers with a good faith defense under Section 713(b) of Title VII in the event of a dispute about their affirmative action program. Section 713(b) of Title VII provides that an employer can defend itself in a dispute by showing that it was relying in good faith on a written interpretation or opinion of the EEOC. With the EEOC’s rescission of its affirmative action guidance, employers that established affirmative action programs under it can no longer rely on that good faith defense.
The EEOC’s action doesn’t change Title VII, nor does it have any impact on U.S. Supreme Court precedent that upheld the validity of affirmative action plans under certain criteria in United Steelworkers v. Weber, 443 U.S. 193 (1979) and Johnson v. Transportation Agency of Santa Clara County, 480 U.S. 616 (1987). Both decisions remain good law unless the Supreme Court overrules them. However, employers with voluntary affirmative action plans should consult with legal counsel about how the EEOC’s change may impact their program and available defenses in the event of any future dispute.
The EEOC’s announcement comes amid a flurry of activity from the agency. On May 14, 2026, the EEOC submitted a proposed rule to the Office of Information and Regulatory Affairs (OIRA) indicating that the agency intends to end longstanding EEO data reporting requirements for large employers. Then, on June 4, 2026, the EEOC released a new five-year National Enforcement Plan, which states the agency’s enforcement priorities.
Most recently, on July 1, 2026, the EEOC voted to release its draft strategic plan for fiscal years 2026-2030. Interested parties may provide public comments through July 31, 2026, after which the EEOC will consider final approval.
James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
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