Employers may soon see a shift in federal guidance on voluntary affirmative action programs. On May 27, 2026, the Equal Employment Opportunity Commission (EEOC) submitted a proposal to rescind its 1979 interpretive guidance on voluntary affirmative action under Title VII of the Civil Rights Act. The existing guidance, found at 29 C.F.R. Part 1608, explains when employers may voluntarily adopt affirmative action measures to address workforce imbalances or barriers to equal employment opportunity.
The current guidance also provides a framework for when employers may rely on the EEOC’s interpretation as a defense in certain Title VII matters, including where the employer acted in good faith and in reliance on the agency’s written guidance.
What This Means
The EEOC’s proposal does not immediately change the law. OIRA review is only one step in the regulatory process, and the EEOC would need to take further action before any rescission becomes effective.
The proposal also does not amend Title VII or overturn U.S. Supreme Court decisions recognizing that voluntary affirmative action plans may be permissible in limited circumstances. However, it signals that federal agencies are continuing to reassess employment programs that consider race, sex, or other protected characteristics.
This development follows broader federal scrutiny of diversity, equity, and inclusion initiatives, affirmative action programs, and other employment practices tied to protected characteristics.
Why Employers Should Pay Attention
If the EEOC ultimately rescinds the guidance, employers may have less agency guidance to rely on when evaluating or defending voluntary affirmative action plans. The change could also affect how the EEOC reviews these programs in future enforcement matters.
Employers should be especially cautious with programs that involve hiring goals, representation targets, preferences, set-asides, or other practices that reference protected characteristics.
Forework Takeaway
Employers with voluntary affirmative action plans, DEI initiatives, representation-focused programs, or hiring practices tied to protected characteristics should:
• Review whether the program is legally required or voluntary.
• Confirm the business and legal basis for the program.
• Avoid rigid quotas, preferences, or set-asides.
• Ensure employment decisions remain individualized and merit-based.
• Monitor further EEOC action before assuming the guidance has been rescinded.