The Equal Employment Opportunity Commission (“EEOC”) has voted to rescind two decades-old documents addressing permissible affirmative action under Title VII of the Civil Rights Act of 1964: (i) its 1979 Interpretive Rule, “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964,” and (ii) Section 607 of the EEOC’s Compliance Manual, which outlined the agency’s enforcement positions with respect to permissible affirmative action and affirmative action plans.[1] According to the EEOC, the rescission “is consistent with the text of Title VII and Supreme Court precedent.”[2]
The first rescinded document, the 1979 Interpretive Rule, has served as the EEOC’s roadmap for when private employers may voluntarily adopt affirmative action plans consistent with Title VII. It encouraged employers to conduct a “reasonable self-analysis” of their workforce and permitted reasonable voluntary action where that analysis identified adverse impact, the lingering effects of prior discrimination, or artificially limited applicant or promotion pools.[3]
The second rescinded document, Section 607 of the EEOC’s Compliance Manual, elaborated on the 1979 guidelines and set out the agency’s enforcement approach to permissible affirmative action plans. The EEOC stated that Section 607 was “made obsolete” in light of the rescission of the 1979 Interpretive Rule.[4]
The EEOC stated that the documents ran afoul of Title VII and the U.S. Supreme Court’s 2025 decision in Ames v. Ohio Department of Youth Services, in which a unanimous Court held that Title VII requires the same evidentiary standard for all disparate-treatment plaintiffs—regardless of whether they belong to a majority or minority group.[5]
In light of the rescission, employers should review any voluntary affirmative action plans, DEI-related programs, and other initiatives that consider protected characteristics in employment decisions, and should document the legitimate, non-discriminatory basis for any measures they retain.
[4] EEOC Press Release, supra note 1.