EEOC Rescinds Its Title VII Affirmative Action Guidelines

Authority

EEOC

Citation

91 FR 40879

Effective Date

July 6, 2026

The Equal Employment Opportunity Commission has issued a final interpretive rule rescinding its 1979 Guidelines on Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, and removing them from the Code of Federal Regulations. The rule removes and reserves title 29, part 1608 of the Code of Federal Regulations. It is effective July 6, 2026, and applicable as of June 29, 2026.

Background

The EEOC adopted the affirmative action guidelines in 1979 under section 713(b) of Title VII, which allows an employer to raise a defense to liability when it acts in good faith in conformity with and in reliance on a written interpretation or opinion of the Commission. The guidelines described when and how employers, labor organizations, and other covered entities could take voluntary race- and sex-conscious affirmative action to improve employment opportunities for minorities and women.

The Commission explains that it lacks substantive rulemaking authority under Title VII and may issue only procedural regulations. It states that the guidelines were nonbinding interpretive rules and that, under the Administrative Procedure Act and Perez v. Mortgage Bankers Ass’n, interpretive rules may be rescinded without notice and comment even where notice and comment was used to adopt them.

The EEOC gives several reasons for the rescission: it views the guidelines as inconsistent with the plain text of Title VII, unsupported by Supreme Court precedent when issued, obsolete in light of decades of later caselaw, and limited to plans benefiting only women and minorities. The Commission also points to more recent decisions, including Students for Fair Admissions v. Harvard, Ricci v. DeStefano, and Ames v. Ohio Department of Youth Services.

What the Rule Changes

The operative amendatory text removes and reserves title 29, part 1608 of the Code of Federal Regulations in its entirety, acting under the authority of 42 U.S.C. § 2000e-12(b). With that removal, the guidelines no longer exist as a written interpretation or opinion of the Commission on which a covered entity can rely.

Because section 713(b) tied the good-faith reliance defense to conformity with the guidelines, the practical effect is that employers can no longer assert that defense based on the guidelines for affirmative action taken after the rescission. The Commission states that the rescission is not retroactive, so the defense may still be available for actions taken before the rescission, subject to all other statutory prerequisites.

Scope and Procedure

The rescission was issued as a final interpretive rule without notice and comment. The Commission determined that the action is not a significant regulatory action, imposes no new information collection burdens under the Paperwork Reduction Act, and does not trigger the Unfunded Mandates Reform Act threshold. It also submitted the document for review under the Congressional Review Act.

The Commission states that rescission is not expected to meaningfully change how employers carry out their Title VII responsibilities, noting that courts have generally analyzed whether an affirmative action plan itself violates Title VII rather than whether it is insulated by the guidelines. California employers remain subject to state antidiscrimination law under the Fair Employment and Housing Act, which operates independently of these federal guidelines.