EEOC Moves to Rescind Longstanding Affirmative Action Rule Under Title VII

Key Highlights

• The EEOC has submitted a rulemaking item for White House regulatory review that would rescind its 1979 Interpretive Rule, “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964.”
• The 1979 rule currently provides the EEOC’s framework for when employers may adopt voluntary affirmative action plans under Title VII, including where a reasonable self-analysis identifies adverse impact, the effects of prior discrimination or artificially limited labor pools.
• A rescission would not, by itself, change Title VII or erase Supreme Court precedent allowing certain voluntary affirmative action plans, but it would remove a longstanding EEOC framework and allowing increased scrutiny of diversity, equity and inclusion (DEI) programs that consider race, sex, national origin or other protected characteristics in employment decisions.

What Is Changing?

The EEOC has moved to rescind its 1979 Interpretive Rule, codified at 29 C.F.R. Part 1608, which has long provided guidance on when voluntary affirmative action may be appropriate under Title VII. The agency’s release does not provide much detail, but the practical issue for employers is clear: the EEOC is looking to withdraw a rule that has served as a roadmap for evaluating voluntary affirmative action plans. The proposed rescission reflects the EEOC’s broader shift toward increased scrutiny of employment practices that expressly consider race, sex or other protected characteristics, particularly in the context of DEI-related initiatives.

Part 1608 Currently Gives Employers a Framework for Voluntary Affirmative Action Plan

Under the current rule, voluntary affirmative action may be appropriate where an employer’s self-analysis identifies actual or potential adverse impact, the continuing effects of prior discriminatory practices or artificially limited applicant or promotion pools. The rule provides that an affirmative action plan should include three elements: a reasonable self-analysis, a reasonable basis for concluding that action is appropriate and reasonable action in relation to the problem identified.

The rule also has a reliance component. It identifies itself as a “written interpretation and opinion” of the EEOC under Section 713(b)(1) of Title VII, which allows employers to argue that actions taken in good-faith reliance on the rule are protected even if that interpretation is later modified or rescinded.

Rescission Would Remove the EEOC’s Agency-Endorsed Framework, Not Rewrite Title VII

A rescission would not automatically make all voluntary affirmative action unlawful. In United Steelworkers v. Weber, the Supreme Court upheld a private employer’s voluntary affirmative action plan where the plan was designed to address a manifest racial imbalance in traditionally segregated job categories, did not unnecessarily trammel the interests of white employees and was temporary.

The Court later applied similar principles in Johnson v. Transportation Agency, upholding a plan that considered sex as one factor in a promotion decision where women were underrepresented in a traditionally segregated job category and the plan was moderate, flexible and case-by-case.

Although the Supreme Court’s decision in Students for Fair Admissions v. Harvard addressed higher education admissions rather than employment practices under Title VII, the decision has significantly influenced the broader legal and enforcement landscape surrounding DEI initiatives. Since SFFA, employers have faced increased scrutiny of programs that expressly consider protected characteristics, including through litigation challenges, agency investigations and employee complaints.

Even so, losing Part 1608 would matter. Employers would no longer have the same EEOC-endorsed rule to rely on when defending future race-, sex- or national-origin-conscious employment decisions or any voluntary affirmative action programs, disparity analysis or adverse impact analysis. The move also fits within the EEOC’s broader stated focus on “rooting out unlawful DEI-motivated race and sex discrimination.”

Employers Should Review Programs that Consider Protected Characteristics

Employers should not treat every EEO, DEI, outreach, mentoring, recruiting or pipeline program the same. Programs that expand opportunity without using protected characteristics as a selection factor generally present different risks than programs that reserve slots, apply preferences, set quotas or otherwise tie employment decisions to race, sex, national origin or another protected trait.

Employers should identify any programs that rely on Part 1608 or otherwise consider or provide opportunity based on protected characteristics in hiring, promotion, internships, fellowships, leadership development, training access, compensation, layoffs or other employment opportunities. For any such program, employers should review whether it is supported by a current self-analysis, whether it is focused on one race or sex or all, whether goals are aspirational rather than mandatory, whether the program is tied to identified barriers or imbalances, whether the employer can clearly articulate and document the program’s factual and legal justifications, whether the program is applied consistently in practice and whether it includes limits, review points and an endpoint. Programs lacking documented support or clear limiting principles or that are narrowly focused on certain races or ethnicities may face greater scrutiny in the current enforcement environment.

Why This Matters

Rescission of the 1979 rule would not end lawful equal employment opportunity efforts, and it would not repeal Weber or Johnson. But voluntary affirmative action plans have always required careful structuring to fit within Title VII’s nondiscrimination requirements. The anticipated elimination of Part 1608, together with other EEOC developments reflecting a more “color-blind” approach to Title VII enforcement, would only heighten the need for employers that maintain these programs to carefully assess the factual and legal justifications for them, how they are applied in practice and whether they remain appropriately limited. In the current enforcement environment, employers should expect greater scrutiny of programs that use protected characteristics in employment decisions and should review those programs now, before a charge, complaint or litigation challenge forces that review on a less favorable timeline.

Employers with questions about voluntary affirmative action plans, DEI-related employment programs or how to assess risk in light of the EEOC’s anticipated rescission should contact their Polsinelli Labor and Employment attorney.