Key Takeaways
On June 29, 2026, the Equal Employment Opportunity Commission (EEOC) voted to rescind its 1979 interpretive guidelines on voluntary affirmative action under Title VII (29 C.F.R. Part 1608), along with the related Compliance Manual Section 607. The rescission takes effect upon its July 6, 2026 publication in the Federal Register and is applicable as of June 29, 2026. Because the Commission classified the action as a final interpretive rule, it proceeded without notice and comment. The practical effect: employers may no longer rely on the rescinded Guidelines as long-standing Section 713(b) “good faith reliance” defense for affirmative action plans built to the Guidelines’ specifications is no longer available for employer actions taken after the rescission. Actions taken before the rescission are not affected retroactively.
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For nearly five decades, employers weighing voluntary affirmative action under Title VII had an EEOC regulatory roadmap and a potential Section 713(b) reliance defense for actions taken in good faith with that roadmap. As of this week, that roadmap has been rescinded, and future reliance on it is no longer available. The Commission’s rescission of its 1979 Guidelines is the latest in a rapid series of federal moves reshaping how agencies view demographic-conscious employment practices, and it lands squarely in territory federal contractors have been navigating since Executive Order 11246 was revoked last year. Here is what happened, what it changes, and where contractor compliance programs go from here.
What Happened
The rescission shifts employer review away from the 1979 regulatory safe harbor and back to Title VII and current case law.
The Guidelines, issued in 1979, told employers when and how they could take voluntary race- and sex-conscious affirmative action without exposing themselves to Title VII liability. An employer that adopted a written, dated plan in good faith conformity with the Guidelines could invoke a statutory defense under Section 713(b) of Title VII if that plan later drew a discrimination charge.
In rescinding both documents, the Commission concluded that the Guidelines conflict with the plain text of Title VII, lacked Supreme Court support when issued, and have been rendered obsolete by four decades of subsequent caselaw, including Ricci v. DeStefano (2009), Students for Fair Admissions (2023), and Ames v. Ohio Department of Youth Services (2025). The Commission also found the Guidelines legally suspect because they protected only plans benefiting women and minorities, a limitation it views as inconsistent with the Supreme Court’s holding in Ames that Title VII provides the same protections to every individual.
The move builds directly on a June 9, 2026 Department of Justice Office of Legal Counsel opinion concluding the Guidelines were unconstitutional, and aligns with Executive Order 14173, which revoked Executive Order 11246 in January 2025.
What Changes in Practice
Importantly, the rescission does not change Title VII itself, and the Commission expressly declined to opine on whether Supreme Court decisions upholding certain voluntary affirmative action plans, such as United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987), remain good law, deferring to the DOJ on that question. That leaves employers navigating a landscape where older precedent technically stands while the enforcement agencies have signaled they read the statute differently. What is gone is the regulatory safe harbor: going forward, any employment decision that considers race or sex will be evaluated against Title VII and current caselaw, not against a 1979 blueprint. The Commission itself noted that reliance on the Guidelines has been minimal, with no located court decision ever shielding an employer under them.
Implications for Federal Contractors
- The EO 11246 thread is now fully cut. The Guidelines expressly incorporated affirmative action plans built under Executive Order 11246, which was revoked in 2025 and whose implementing regulations DOL has issued a notice of intent to rescind. This action removes the EEOC’s remaining regulatory endorsement of that framework.
- Section 503 and VEVRAA obligations are unaffected. Affirmative action requirements for individuals with disabilities and protected veterans are statutory and remain fully enforceable by OFCCP. Do not read this rescission as a reduction in those obligations.
- Legacy plans deserve a fresh look. Any surviving race- or sex-conscious affirmative action program or elements, including outreach goals, placement targets, or plan language drafted to Part 1608, should be reviewed with counsel against current caselaw rather than the rescinded Guidelines.
- Enforcement posture matters. Paired with the EEOC’s National Enforcement Plan priorities, the rescission reinforces that demographic-conscious employment practices are an active area of agency scrutiny.
As this regulatory realignment continues, DirectEmployers will keep monitoring developments and issuing timely updates. Members with questions are encouraged to contact their Membership Team, connect with peers in the DE Connect discussion forum, or join upcoming Member Office Hours.
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
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