[Federal Register Volume 91, Number 127 (Monday, July 6, 2026)]
[Rules and Regulations]
[Pages 40879-40885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-13637]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1608
RIN 3046-AB39
Rescission of Guidelines on Affirmative Action Appropriate Under
Title VII of the Civil Rights Act of 1964, as Amended
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final interpretive rule.
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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') is rescinding its regulations regarding Affirmative
Action Appropriate Under Title VII of the Civil Rights Act of 1964
(``Guidelines''), and removing it from the Code of Federal Regulations.
The Commission is rescinding the Guidelines and removing them from the
Code of Federal Regulations because the Guidelines are inconsistent
with the statutory language and were not supported by Supreme Court
precedent when issued; they are obsolete; they only apply to
affirmative action to benefit women or minorities; and they do not take
into account multiple relevant Supreme Court cases and numerous
developments in the lower courts, over the past four decades since
their issuance in 1979.
DATES: This final interpretive rule is effective on July 6, 2026, and
applicable as of June 29, 2026.
FOR FURTHER INFORMATION CONTACT: Raymond Peeler, Associate Legal
Counsel, Office of Legal Counsel at 202-821-6367 (voice), 1-800-669-
6820 (TTY), [email protected]. Requests for copies of this final
interpretive rule in alternative formats should be made to the Office
of Communications and Legislative Affairs at (202) 921-3191 (voice), 1-
800-669-6820 (TTY), or 1-844-234-5122 (ASL video phone).
SUPPLEMENTARY INFORMATION:
I. Rescission and Removal of the Guidelines
A. Background
Title VII of the Civil Rights Act of 1964 prohibits
``discriminat[ion]'' against workers ``because of [their] race, color,
religion, sex, or national origin.'' 42 U.S.C. 2000e-2(a)(1). In 1977,
the then-Commission proposed--and in 1979 enacted--Guidelines on
Affirmative Action Appropriate Under Title VII of the Civil Rights Act,
As Amended. The Guidelines' stated purpose was to protect ``employers,
labor organizations, and other persons subject to title VII [who] have
changed their employment practices and systems to improve employment
opportunities for minorities and women[.]'' 29 CFR 1608.1(a). Employers
and other entities subject to Title VII, the then-Commission believed,
lacked sufficient guidance regarding the circumstances under which, and
the means through which, they could take race- and sex-conscious
affirmative action. Id.
When the Guidelines were proposed in 1977, cases questioning
whether affirmative action was compatible with Title VII were winding
their way through the lower courts. See, e.g., Weber v. Kaiser Aluminum
& Chem. Corp., 415 F. Supp. 761 (E.D. La. 1976), aff'd, 563 F.2d 216
(5th Cir. 1977), 571
[[Page 40880]]
F.2d 337 (5th Cir. 1978), cert. granted, 439 U.S. 1045 (1978). The
district court and the Fifth Circuit in Weber had already held that the
challenged affirmative action program at issue, a racial quota,
violated Title VII. Despite the percolating cases, the then-Commission
chose to preemptively issue guidance opining that Title VII should be
interpreted to permit race- and sex-conscious affirmative action, and
explaining to employers when and how they purportedly could take such
action permissibly without exposing themselves to liability for
violating Title VII.
In the final Guidelines, the then-Commission conceded that
objections to race- and sex-conscious affirmative action were ``based
upon the principles of title VII.'' 29 CFR 1608.1. Nevertheless, the
then-Commission invoked legislative intent as a limitation on those
principles. Namely, the then-Commission opined that Title VII exists
``to overcome the effects of past and present employment practices
which are part of a larger pattern of restriction, exclusion,
discrimination, segregation and inferior treatment of minorities and
women in many areas of life.'' 44 FR 4422, 4422 (Jan. 19, 1979). From
this, the then-Commission reasoned that one of Congress's purposes in
enacting Title VII was ``to improve the economic and social conditions
of minorities and women by providing equality of opportunity in the
work place.'' 29 CFR 1608.1. To further this purported legislative
intent, the then-Commission concluded that ``appropriate voluntary
affirmative action, or affirmative action pursuant to an administrative
or judicial requirement, does not constitute unlawful discrimination in
violation of [Title VII].'' 44 FR at 4422.
In response to commentators who argued that the proposed
affirmative action guidelines violated the text of Title VII--
specifically, that ``Title VII requires that all employment decisions
be made without any consideration of race, color, religion, sex, or
national origin, regardless of the circumstances''--the then-Commission
concluded that such a view of Title VII ``does not comport with'' the
then recent position taken by the Supreme Court on affirmative action
in college admissions in Regents of the University of California v.
Bakke, 438 U.S. 265 (1978). 44 FR at 4423. And as discussed in section
B.1, below, the then-Commission found additional support in two Supreme
Court Title VII decisions, Albemarle Paper Company v. Moody, 422 U.S.
405 (1975), and Griggs v. Duke Power Company, 401 U.S. 424 (1971).
Once finalized, the Guidelines were offered to the public as the
Commission's ``written interpretation and opinion'' pursuant to Section
713(b)(1) of Title VII. 29 CFR 1608.2.\1\ Therefore, employers who
entered into affirmative action plans or programs in good faith and in
conformity with the Guidelines were afforded 713(b) protection if the
underlying unlawful employment practice complained of was a result of
such a plan. Id. Sec. 1608.4. As such, pursuant to Section 713(b) of
Title VII, the Guidelines provided a statutory defense to claims
brought against employers and other covered entities that relied on the
Guidelines in good faith and took race- or sex-conscious action in
conformance with them.
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\1\ Pursuant to 713(b), if an employer pleads and proves that
the alleged unlawful employment practice complained of was ``in good
faith, in conformity with, and in reliance on any written
interpretation or opinion of the Commission,'' then it ``shall not
be subject to any liability or punishment for or on account of the
[practice].'' 42 U.S.C. 2000e-12(b).
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The Guidelines also set forth the elements of an affirmative action
plan under the Guidelines, 29 CFR 1608.4, as well as other scenarios in
which the then-Commission believed an employer lawfully could have an
affirmative action plan--such as pursuant to the now-revoked Executive
Order (``E.O.'') 11246, 29 CFR 1608.5; a Commission conciliation or
settlement agreement, id. Sec. 1608.6; a state or local law, id. Sec.
1608.7; a court order, id. Sec. 1608.8; or reliance on the directive
of a government agency, id. Sec. 1608.9--and outlined what must be
shown in those circumstances in order for an employer to try to use
such an affirmative action plan as a defense. For example, the
Guidelines state, for 713(b)(1) to apply, specific portions of an
affirmative action plan needed to be dated and in writing--noting
absence of such ``may make it more difficult to provide credible
evidence that . . . [the alleged unlawful action] was taken pursuant to
a plan or program.'' 29 CFR 1608.4. Once a respondent to a charge
pleads ``that the challenged action was taken pursuant to and in
accordance with a plan or program which was adopted or implemented in
good faith, in conformity with, and in reliance upon [the]
Guidelines,'' and specific portions ``are in writing,'' then ``the
Commission will determine whether the assertion is true.'' 29 CFR
1608.10(b). If the Commission so finds, the Commission will issue a no
reasonable cause determination and ``will advise the respondent that:
(1) The Commission has found that the respondent is entitled to the
protection of section 713(b)(1) of Title VII; and (2) That the
determination is itself an additional written interpretation or opinion
of the Commission pursuant to 713(b)(1).'' Id. For those affirmative
action plans or programs not specifically relying on the Guidelines,
the Guidelines provide that if a respondent asserts as a defense to a
charge of discrimination that the underlying action was taken in
accordance with an affirmative action plan of the type described in the
Guidelines, the Commission will determine whether that is true and
whether the program conforms with the requirements of the Guidelines.
29 CFR 1608.10(a). ``If the Commission so finds, the Commission shall
issue a determination of no reasonable cause'' and ``where appropriate,
will state the determination is a written opinion of the Commission
under Section 713(b)(1).'' Id. The respondent then may rely on the
Commission's determination for future charges alleging similar facts.
Id. However, ``[i]f the Commission does not so find, it will proceed
with the investigation in the usual manner.'' Id.\2\
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\2\ On October 1, 1981, the Commission issued CM-607 Affirmative
Action, providing detailed guidance on the Guidelines and
instructions for EEOC processing of charges in which a respondent
asserts that the challenged action was based on an affirmative
action plan. The Commission has issued a separate notice rescinding
CM-607.
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B. Reasons for Rescinding the Guidelines
As explained more fully herein, the Commission has determined that
rescission of the Guidelines is necessary because they (1) are
inconsistent with the plain text of Title VII and were unsupported by
Supreme Court Title VII caselaw addressing affirmative action when
issued; (2) are obsolete; (3) contemplate only plans which benefit
minorities and women; and (4) may conflict with subsequent caselaw and
the U.S. Constitution. The totality of the reasons for rescission
outweighs any potential reliance interests, which themselves are
minimal.
1. The Guidelines Are Inconsistent With the Plain Text of Title VII
First, the Commission is rescinding the Guidelines because they are
inconsistent with the plain text of Title VII and were not supported by
any Supreme Court Title VII precedent addressing affirmative action
when issued.\3\
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\3\ As discussed in subsequent sections, the Commission has
further determined that the Guidelines should be rescinded even if
they were initially justified when issued.
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The Supreme Court has repeatedly stressed that ``statutory
interpretation must `begi[n] with,' and ultimately
[[Page 40881]]
heed, what a statute actually says.'' Groff v. DeJoy, 600 U.S. 447, 468
(2023) (quoting Nat'l Ass'n of Mfrs. v. Dep't of Def., 583 U. S. 109,
127 (2018)); see also, e.g., Babb v. Wilkie, 589 U.S. 399, 404 (2020)
(holding that ``the plain meaning of the statutory text shows that age
need not be a but-for cause of an employment decision in order for
there to be a violation of Sec. 633a(a)'' of the Age Discrimination in
Employment Act). Indeed, when the then-Commission adopted the
Guidelines, it acknowledged that affirmative action had ``been
challenged under Title VII as inconsistent with statutory language
requiring that employment decisions not be based on race [or] sex . . .
considerations.'' 44 FR at 4422.\4\
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\4\ The text of Title VII states:
(a) It shall be an unlawful employment practice for an
employer--
(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individuals race . . . [or] sex . . .; or (2) to
limit segregate or classify his employees or applications for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect
his status as an employee because of such individual's race . . .
[or] sex . . .
42. U.S.C. 2000e-2(a)(1)-(2). Further, Title VII states:
Nothing contained in this subchapter shall be interpreted to
require any employer, employment agency, labor organization, or
joint labor management committee . . . to grant preferential
treatment to an individual or to any group because of the race . . .
[or] sex . . . of such individual or group on account of an
imbalance which may exist with respect to the total number or
percentage of persons of any race . . . [or] . . . sex . . .
employed by any employer . . . in comparison with the total number
of percentage of persons of such race . . . [or] sex . . . in any
community, State, section, or other area, or in the available work
force in any community, State, section or other area.
42 U.S.C. 2000e-2(j).
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In adopting the Guidelines, however, the then-Commission relied
heavily on its view that the purpose of Title VII was to improve the
employment opportunities of minorities and women, and as a result,
notwithstanding its recognition that the same protections apply to all
protected groups, the then-Commission concluded that affirmative action
to benefit minorities and women was nevertheless consistent with Title
VII. 29 CFR 1608.1(a).
When the Guidelines were issued, however, there was no Supreme
Court precedent supporting the then-Commission's interpretation of
Title VII. To justify its atextual interpretation of Title VII, the
then-Commission relied on Albemarle Paper Company v. Moody, a backpay
case dealing with employment selection tests. The then-Commission
reasoned that ``the Supreme Court has called upon employers [in Title
VII cases] `. . . to self-examine and self-evaluate their employment
practices and to endeavor to eliminate, so far as possible, the last
vestiges of an unfortunate and ignominious page in this country's
history' '' including through voluntary affirmative action plans. 44 FR
at 4423 (citing 422 U.S. 405, 418 (1975) (quoting United States v. N.L.
Indus., Inc., 479 F.2d 354, 379 (8th Cir. 1973))).\5\ Albemarle Paper
did not go that far. The decision, in fact, does not address voluntary
affirmative action plans at all. Rather, the decision addresses the
scope of relief under Title VII that a class of employees and
applicants were entitled to following a determination that their
employer had used an unlawfully discriminatory employment test in
hiring. 422 U.S. at 408-09.\6\ The Court's holding on these post-
liability issues is not analogous to the permissibility of pre-
liability race- and sex-conscious affirmative action under Title VII.
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\5\ The full sentence including the portion of the quote
eliminated by an ellipsis states, ``It is the reasonably certain
prospect of a backpay award that `provide(s) the spur or catalyst
which causes employers and unions to self-examine and to self-
evaluate their employment practices and to endeavor to eliminate, so
far as possible, the last vestiges of an unfortunate and ignominious
page in this country's history.' '' 422 U.S. at 418 (emphasis
added).
\6\ In promulgating the Guidelines, the Commission also relied
on Griggs v. Duke Power Co., 401 U.S. 424 (1971) generally, which
addresses arbitrary employment tests that have a disproportionate
effect on minorities, but, as with Albemarle, does not discuss
affirmative action prophylactically.
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The Commission's reliance in the Guidelines on Albemarle for
sweeping authorization to look beyond Title VII's text to remedial
intent was always suspect. The Supreme Court has since made clear that
any employment practice that violates the plain terms of Title VII's
antidiscrimination provisions is not excused because of a benign or
benevolent motive. Ricci v. DeStefano, 557 U.S. 557, 579 (2009)
(concluding that the employer's ``ultimate aim--however well
intentioned or benevolent it might have seemed''--did not change the
fact that it was because of race); cf. Int'l Union, United Auto.,
Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls,
Inc., 499 U.S. 187, 199 (1991) (concluding that ``the absence of a
malevolent motive does not convert a facially discriminatory policy
into a neutral policy''). The EEOC's statutory authority to issue rules
under Title VII is limited to procedural matters. See 42 U.S.C. 2000e-
12(a) (``The Commission shall have authority from time to time to
issue, amend, or rescind suitable procedural regulations to carry out
the provisions of this subchapter.''); Gen. Elec. Co. v. Gilbert, 429
U.S. 125, 141 (1976) (``Congress, in enacting Title VII, did not confer
upon the EEOC authority to promulgate rules or regulations pursuant to
. . . Title [VII].'' (citing Albemarle v. Moody, 422 U.S. at 431)). And
regardless of the Commission's Title VII enforcement authority, the
Guidelines may conflict with the ``single, best meaning'' of Title VII
as reflected in binding Supreme Court precedent. Loper Bright Enters.
v. Raimondo, 603 U.S. 369, 400 (2024). The issuance of the Guidelines
therefore may have exceeded the Commission's authority.
2. The Guidelines Are Obsolete
Second, the Commission is rescinding the Guidelines because they
are obsolete given the caselaw that has developed since their issuance.
In the 46-plus years since the Guidelines were issued, a copious amount
of caselaw has developed addressing when, if ever at all, an employer
may lawfully engage in voluntary affirmative action. See generally
Barbara T. Lindemann et al., Employment Discrimination Law, Chapter 38
(6th ed. 2021) (providing overview of caselaw on affirmative action);
see, e.g., Ames v. Ohio Dep't of Youth Servs., 605 U.S. 303 (2025);
Students for Fair Admissions, Inc. v. President & Fellows of Harvard
Coll. (SFFA), 600 U.S. 181 (2023); Ricci v. DeStefano, 557 U.S. 557
(2009); Johnson v. Transp. Agency, 480 U.S. 616 (1987); United States
Steel Workers of Am. AFL-CIO-CLC v. Weber, 433 U.S. 193 (1979); see
also, e.g., Taxman v. Bd. of Educ., 91 F.3d 1547 (3d Cir. 1996). This
caselaw has rendered the Guidelines obsolete. In evaluating a charge of
discrimination involving an affirmative action plan, the proper inquiry
is whether the charging party has been subjected to discrimination
prohibited by Title VII, as determined by binding legal authority, not
whether the respondent's affirmative action plan conforms to guidelines
that were issued before the Supreme Court had ever addressed the
permissibility of affirmative action under Title VII. Because the
Guidelines ``encourage'' affirmative action benefiting minorities and
women, their rescission is also consistent with Executive Order 14173,
``Ending Illegal Discrimination and Restoring Merit-Based Opportunity''
(Jan. 21, 2025), which revoked Executive Order 11246.
Even assuming, arguendo, the Guidelines were ever justified, the
Supreme Court has recognized that explicitly race-based actions are
inherently suspect and their use must be limited in duration and have a
clear end date. Cf. SFFA, 600 U.S. at 212
[[Page 40882]]
(concluding that a ``race conscious'' college admissions program must
have an ``end point''); id. at 314 (Kavanaugh, J., concurring) (stating
that in Grutter, the Court did not exempt college admissions from the
requirement that ``all governmental use of race must have a logical end
point'' and that this requirement ``assures all citizens that the
deviation from the norm of equal treatment of all racial and ethnic
groups is a temporary matter'' (quoting Grutter v. Bollinger, 539 U.S.
306, 342 (2003))). Because more than four decades have passed since the
Guidelines were adopted, their ``end point'' has surely been reached,
if not far surpassed, and they must be rescinded.
Moreover, the historical and cultural factors that gave rise to
affirmative action programs in the immediate wake of the civil rights
advancements of the 1960s are simply not present in 2026. The societal
context today is different. Cf. SFFA, 600 U.S. at 213 (noting that
twenty years earlier it had held that it expected that in twenty-five
years ``racial preferences [in college admissions] will no longer be
necessary to further the interest approved today''). As with college
admissions, in the employment context, the interests advanced when the
Guidelines were adopted in 1979 that were purported to have justified
race-conscious affirmative action programs, even if present then, are
simply not present today. The Guidelines remain frozen in time and
cannot account for the more than 60 years of progress made under Title
VII towards equal employment opportunity.\7\
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\7\ By way of contrast, the latest Supreme Court decision
addressing affirmative action under Title VII was issued almost 40
years ago in 1987. See Johnson v. Transp. Agency, 480 U.S. 616
(1987). Much more recently, the Supreme Court has rejected the use
of race to provide advantage in another context. See, e.g., SFFA,
600 U.S. 181 (2023) (finding considerations of race in admissions at
two universities violated the Fourteenth Amendment and/or Title VI
of the Civil Rights Act of 1964).
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3. The Guidelines Provide a Defense for Affirmative Action Efforts on
Behalf of Only Women and Minorities
Third, the Guidelines facially and impermissibly endorse only those
affirmative action plans aimed at remedying past discrimination against
minorities or women. See, e.g., 29 CFR 1608.1(a) (stating that
employers must continue to change practices to ``improve employment
opportunities for minorities and women'' and that the Guidelines were
being issued to allow ``affirmative action to [be] undertaken to
improve the conditions of minority and women'' because the Commission
did not believe that Congress intended to ``immobilize or reduce the
efforts of many who would otherwise take action to improve the
opportunities of minority and women without litigation''); id. Sec.
1608.1(c) (``Voluntary affirmative action to improve opportunities for
minorities and women must be encouraged and protected . . . .''); id.
Sec. 1608.1(d) (``These Guidelines describe the circumstances in which
persons subject to title VII may take or agree upon action to improve
employment opportunities of minorities and women . . . .''). Clearly,
the Guidelines were promulgated for the express purpose of protecting
affirmative action only on behalf of women and minorities.
To the extent specific provisions, such as 29 CFR 1608.3, might be
read in isolation to potentially authorize affirmative action plans for
persons other than women and minorities, such a reading would be
incongruent with the singular rationale set forth in Section 1608.1 for
the adoption of the Guidelines as protecting affirmative action plans
for women and minorities. The regulatory text is explicit that at the
time of the Guidelines' adoption, affirmative action was understood as
supporting only women and minorities.
Moreover, Section 1608.5 incorporates affirmative action plans
created by federal contractors pursuant to the now-revoked E.O.
11246.\8\ Those plans are likewise limited to women and minorities. See
41 CFR 60-2.10-2.17. Thus, any E.O. 11246 affirmative action plan
defense contemplated by 29 CFR 1608.5 necessarily would be available
only for women and minority affirmative action programs, and not those
supporting any other category of individuals.
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\8\ E.O. 11246 was revoked on January 21, 2025, by E.O. 14173,
``Ending Illegal Discrimination and Restoring Merit-Based
Opportunity.''
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Notably, the Department of Labor has issued a notice of intent to
rescind its regulations implementing now-revoked E.O. 11246. Those
regulations are foundational to the plans endorsed in Section 1608.5 of
the Guidelines and to the ``self-analysis'' mandated by Section 1608.4
(``The employer may utilize techniques used in order to comply with
E.O. 11246, as amended, and its implementing regulations, including 41
CFR part 60-2 (known as Revised Order 4), or related orders issued by
the Office of Federal Contract Compliance Programs . . . .''). The
Guidelines therefore incorporate an Executive Order and regulatory
scheme that no longer have any valid authorizing source of law, which
further supports rescission of the Guidelines.
Because the Guidelines provide a defense for affirmative action
efforts on behalf of only women and minorities, they result in
different standards for ``majority-group'' individuals to prove Title
VII discrimination where an employer asserts this defense. In June
2025, the Supreme Court unanimously held that the evidentiary standard
for proving disparate treatment under Title VII does not depend on
whether a plaintiff is a member of a ``minority group'' or ``majority
group.'' Ames, 605 U.S. at 310. Rather, Title VII provides the ``same
protections for every `individual.' '' Id. Because the Guidelines are
limited to affirmative action plans to improve opportunities for
minorities and women, they provide less protection to majority-group
employees, which may be contrary to Ames and the text of Title VII.
In limiting protections to affirmative action plans that favor
certain groups because of their race, national origin, and sex, the
Guidelines also implicate constitutional equal protection guarantees.
Government actions that involve race- and sex-based classifications are
subject to heightened scrutiny under the Constitution. See United
States v. Skrmetti, 605 U.S. 495, 510 (2025) (contrasting strict
scrutiny (race, alienage, national origin) and intermediate scrutiny
(sex) with rational basis review). It is highly questionable whether
the Commission could establish that it had constitutionally adequate
reasons for the categorical exclusion of men and those in a racial
majority, i.e., Whites, at the time it issued the Guidelines, much less
that the exclusion continues to be justified decades later. If an
employer were able to establish that an affirmative action plan to
address purported ``under-representation'' of men or white individuals
from the workplace that met the Guidelines' requirements, it is not
clear why such an affirmative action plan for men or White individuals
should not be entitled to the same protections as those for minorities
or women. Cf. SFFA, 600 U.S. at 206 (stating, in the context of a case
addressing the constitutionality of affirmative action in college
admissions, that ``[e]liminating racial discrimination means
eliminating all of it'' and that ``the Equal Protection Clause applies
`without regard to any differences of race, of color, or of
nationality'--it is `universal in [its] application' '' (quoting Yick
Wo v. Hopkins, 118 U.S. 356, 369 (1886))); see also Frank v. Xerox
Corp., 347 F.3d 130, 137 (5th Cir. 2003) (employer's affirmative action
efforts to correct underrepresentation of Whites in
[[Page 40883]]
its workforce constituted unlawful discrimination against Black
employees).
As discussed in the next section, even if the Guidelines were not
limited to affirmative action benefiting women and minorities, they
still would be suspect given the sea change in caselaw addressing the
legality of affirmative action programs since the Guidelines were
issued.
4. The Guidelines Potentially Conflict With Subsequent Caselaw and the
Constitution
Fourth, aside from the limitation to minorities and women, other
aspects of the Guidelines potentially conflict with subsequent caselaw
and the U.S. Constitution. For example, in Ricci v. DeStefano, 557 U.S.
557, 579-80 (2009), the Supreme Court faulted the district court for
concluding that a city's decision to reject test scores was not
discriminatory even though the city took the action solely because the
higher-scoring candidates were White. Even if the city rejected the
results to avoid disparate impact liability, the Court explained, its
decision was nevertheless based on race. In an amicus brief filed by
the United States, and joined by the then-Commission, the government
argued that an employer's refusal to certify test results does not
violate Title VII's disparate treatment provision when based on a
reasonable belief that the test violates Title VII's disparate impact
provision, and for support, the government pointed to 29 CFR
1608.4(b)(1) and (3). Brief for the United States as Amicus Curiae
Supporting Vacatur and Remand, Ricci v. DeStefano, 557 U.S. 557 (2009)
(Nos. 07-1428, 08-328). The Supreme Court disagreed, concluding that an
employer is permitted to engage in intentional discrimination only if
it has a ``strong basis in evidence'' to believe that the action was
necessary to avoid disparate-impact liability. The Guidelines do not
require that an employer use a ``strong basis in evidence'' standard
for past unlawful discrimination remedied through a race-conscious
employment decision-making framework such as affirmative action.
Although 29 CFR 1608.3 discusses circumstances in which an employer may
appropriately engage in voluntary affirmative action, the Guidelines do
not impose any particular evidentiary standard that the employer must
meet in making this determination.\9\ Ricci states that in order to
take actions based on race under Title VII--including those intended to
remedy past discrimination--an employer must meet an exacting
evidentiary standard that the Guidelines do not require. Thus, the
Guidelines may be inconsistent with Ricci.\10\
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\9\ Section 1608.3(a) allows affirmative action where a policy
has an adverse effect where it `` `[t]end[s] to deprive' persons of
equal employment opportunities.'' Certainly the ``tends to deprive''
standard falls short of Ricci's ``strong basis in evidence''
standard. And Sec. 1608.3(b), allowing affirmative action ``to
correct the effects of prior discriminatory practices,'' and Sec.
1608.3(c), allowing affirmative action where there is a historically
limited labor pool, contain no evidentiary standards that an
employer must meet to show these circumstances exist.
\10\ In E.O. 14281, Restoring Equality of Opportunity and
Meritocracy (Apr. 23, 2025), President Donald Trump criticized
disparate-impact liability and stated that ``[i]t is the policy of
the United States to eliminate the use of disparate-impact liability
in all contexts to the maximum degree possible to avoid violating
the Constitution, Federal civil rights laws, and basic American
ideals.'' Because the EEOC is not required to provide a defense
under section 713(b) for employers that decide to adopt voluntary
affirmative action plans, the rescission of the Guidelines aligns
with the Executive Order.
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The analysis in Ricci also suggests that the Guidelines may be
unconstitutional. Relying heavily on Ricci, the Department of Justice
(DOJ) issued an opinion on June 9, 2026, concluding that the Guidelines
are unconstitutional because they endorse the use of ``racial
preferences'' under Title VII even though ``Congress has never
demonstrated that `racial classifications' under Title VII are
necessary to `remediat[e] specific, identified instances of past
discrimination that violated the Constitution or a statute' '' and the
Guidelines ``encourage racial quotas, lack any definite endpoint, rely
on arbitrary and undefined racial categories, and impose burdens on
other racial groups'' (citations omitted)). 50 Op. O.L.C. (June 9,
2026) (slip op. at 24).
The Court's Ricci decision is part of a broader sea change in
Supreme Court jurisprudence rejecting purpose-driven interpretations of
anti-discrimination protections in favor of textualist and colorblind
approaches that treat everyone the same without exception. See Callais
v. Louisiana, 145 S. Ct. 1131 (2026) (Voting Rights Act case); Ames,
605 U.S. 303; SFFA, 600 U.S. 181 (Equal Protection Clause case);
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S.
701 (2007) (Equal Protection Clause case). The only affirmative action
case that the then-Commission relied on in adopting the Guidelines--
Bakke, 438 U.S. 265--was effectively overruled in SFFA. To the extent
there is Supreme Court caselaw that has blessed the use of affirmative
action as consistent with Title VII, see Weber, 443 U.S. 193; Johnson,
480 U.S. 616, the Commission is not taking a position herein on whether
those decisions have been effectively overruled; the Commission defers
to DOJ's position regarding that question. Regardless, that question
need not be addressed here because the existence of these cases does
not require that the Commission promulgate or retain outdated and
unhelpful guidance, including a safe harbor, on the topic of
affirmative action into perpetuity.
5. Any Reliance Interests in the Guidelines Are Minimal and Are
Outweighed by the Reasons for Rescission
Although the rescission of the Guidelines means that employers will
not be able to assert a defense under section 713(b) for actions taken
pursuant to an affirmative action plan after the rescission, the
Commission does not believe the rescission will have a meaningful
impact on how employers will implement their Title VII
responsibilities. Even when affirmative action is asserted as a
potential defense in a case, it does not appear that employers rely on
affirmative action plans that have been formulated to meet the
requirements of the Guidelines. Rather, when an affirmative action plan
has been at issue, courts have almost always looked at whether the
employer has violated Title VII by adopting and implementing the plan,
not whether the plan is legally insulated pursuant to the Guidelines
and section 713(b). See generally Barbara T. Lindemann et al.,
Employment Discrimination Law, Chapter 38 (6th ed. 2021) (discussing
affirmative action caselaw). Decisions addressing the Guidelines are
especially rare, and the Commission has not located a decision in which
a court has held that an employer was protected from liability because
of its reliance on the Guidelines. Regardless, because the rescission
will not be retroactive, employers will still be able to assert a
defense \11\--assuming, arguendo, the employer can establish all
prerequisites necessary to assert such a defense--under section 713(b)
for actions taken before the rescission. See 29 U.S.C. 2000e-12(b)
(defense is available notwithstanding that ``written interpretation or
opinion of the Commission'' is ``modified or rescinded or is determined
by judicial authority to be invalid or of no legal effect'' after
[[Page 40884]]
employer takes challenged employment decision).
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\11\ Whether the defense is successful will hinge on numerous
factors, which the Commission does not attempt to prejudge here,
including whether all conditions precedent are met and whether the
alleged unlawful conduct was actually taken pursuant to said plan.
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C. Conclusion
The Commission has voted to rescind the Guidelines on Affirmative
Action Appropriate Under Title VII of the Civil Rights Act of 1964, as
Amended. Even when first issued, the Guidelines were suspect, given
their inconsistency with the statutory text and narrow application to
affirmative action benefiting women and minorities. Since the issuance
of the Guidelines in 1979, the Supreme Court and numerous courts have
issued a vast number of cases addressing affirmative action. That
caselaw has rendered the Guidelines obsolete and also potentially
legally incorrect in various respects. Rescinding the Guidelines is
unlikely to significantly affect employers, given the lack of evidence
that today's employers adopt affirmative action plans in reliance on
the Guidelines.
II. Procedural Issues and Regulatory Review
A. Administrative Procedure Act
The Commission issued the Guidelines in 1979 pursuant to its
authority under section 713 as a ``written interpretation or opinion of
the Commission'' that would provide a defense to potential Title VII
liability for someone who ``pleads and proves that the act or omission
complained of was in good faith, in conformity with, and in reliance''
on the Guidelines. 42 U.S.C. 2000e-12(b). Because the Commission lacks
substantive rulemaking authority, see id. Sec. 2000e-12(a)
(authorizing Commission to issue ``suitable procedural regulations''
only), the Guidelines merely provide the Commission's non-binding
interpretations of Title VII. Recognizing this limitation, the
Commission characterized the Guidelines as ``Interpretative
Guidelines'' when they were issued, though it voluntarily underwent the
notice-and-comment process before promulgation of the Guidelines.\12\
44 FR at 4422.
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\12\ The terms ``interpretative guidelines'' and ``interpretive
guidelines'' are interchangeable, as are the terms ``interpretative
rules'' and ``interpretive rules.'' The latter phrasings
(``interpretive . . .'') are the more common current-day phrasings.
See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 96 n.1 (2015).
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Under the Administrative Procedure Act (``APA''), agencies are not
required to follow the notice-and-comment process for ``interpretative
rules.'' 5 U.S.C. 553(b) (A). In Perez v. Mortgage Bankers Ass'n, 575
U.S. 92 (2015), the Supreme Court held that the Department of Labor
(``DOL'') was not required to follow notice-and-comment procedures when
it rescinded an interpretive rule in the form of an opinion letter that
had interpreted an administrative exemption as applying to mortgage-
loan officers.\13\ The Court held that the APA exception in Sec. 4 of
the APA (5 U.S.C. 553) is ``categorical.'' \14\ 575 U.S. at 100
(emphasis added). As a result, courts ``lack authority `to impose upon
[an] agency its own notion of which procedures are `best' or most
likely to further some vague, undefined public good.' '' Id. at 102
(quoting Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,
Inc., 435 U.S. 519, 549 (1978)).
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\13\ Similar to the EEOC's Affirmative Action Guidelines, the
DOL opinion letter at issue in Perez provided a defense to liability
for employers that had relied on the letter in good faith. Section
258 of the Portal-to-Portal Act provides:
[N]o employer shall be subject to any liability or punishment
for or on account of the failure of the employer to pay minimum
wages or overtime compensation under the Fair Labor Standards Act of
1938, as amended, . . . if he pleads and proves that the act or
omission complained of was in good faith in conformity with and in
reliance on any administrative regulation, order, ruling, approval,
or interpretation, of any agency of the United States, or any
administrative practice or enforcement policy of any such agency
with respect to the class of employers to which he belonged.
29 U.S.C. 258.
\14\ The Supreme Court stated in Perez: ``[T]he D.C. Circuit
correctly read Sec. 2 [5 U.S.C. 551] of the APA to mandate that
agencies use the same procedures when they amend or repeal a rule as
they used to issue the rule in the first instance.'' 575 U.S. at
101. This statement should not be understood to mean that an agency
must use notice-and-comment procedures to rescind a document that
the agency voluntarily decided to use in adopting the document. This
statement relates only to the definition of ``rule making'' in 5
U.S.C. 551(5), which, as explained by the Court, does not ``say what
procedures an agency must use when it engages in rulemaking.'' Id.
Those required procedures are in Sec. 4 (5 U.S.C. 553), which the
Court concluded categorically exempts interpretive rules from
notice-and-comments requirements. Thus, notice-and-comment
procedures are not required for the rescission of interpretive rules
even if those procedures were used when the rules were adopted. See
Rescission of Procedures for Implementing the National Environmental
Policy Act, 90 FR 29,453, 29,455 (July 3, 2025) (agency voluntarily
provided notice-and-comment opportunity to respond to interim final
rule: ``As the Supreme Court has held, where notice-and-comment
procedures are not required, prior use of them in promulgating a
rule does not bind the agency to use such procedures in repealing
it.'' (citing Perez, 575 U.S. at 101)).
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Likewise here, under both the APA and Perez, the Commission
rescinds the Guidelines without notice and comment. Although the
Guidelines were issued after notice and comment, the Commission has
voted to approve a final rescission of the Guidelines without following
the same process. When the Commission proposed the Guidelines, it
followed notice-and-comment procedures because it believed ``public
comment would be useful,'' not that it was required. 42 FR at 64,826.
As discussed above, the Commission has identified multiple compelling
justifications for rescinding the Guidelines, and therefore, determines
that they should be rescinded expeditiously without notice and comment.
B. Review Under Executive Order 14192
The Commission has examined this rescission and has determined that
it is consistent with the policies and directives outlined in E.O.
14192, ``Unleashing Prosperity Through Deregulation.'' This rescission
is expected to be an E.O. 14192 deregulatory action.
C. Review Under Executive Order 12866 (as Amended by Executive Order
14215)
The Commission has complied with the principles in section 1(b) of
E.O. 12866, as amended by E.O. 14215, Regulatory Planning and Review.
This rescission is not a ``significant regulatory action'' under
section 3(f) of the Executive Order and does not require an assessment
of potential costs and benefits under section 6(a)(3) of the Executive
Order.
D. Review Under Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) (``PRA'')
applies to Federal collections of information when an agency creates a
new paperwork burden on regulated entities or modifies an existing
burden. This rescission imposes no new information collection
requirements on the public, and therefore it will create no new
paperwork burdens or modifications to existing burdens that are subject
to review by the Office of Management and Budget under the PRA.
E. Unfunded Mandates Reform Act of 1995
This rescission will not result in the expenditure by State, local,
or Tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1501, 1532(a).
F. 29 CFR Part 1695
Commission regulations at part 1695 of title 29 of the CFR provide
procedures that generally apply to a ``guidance document,'' which is
defined as ``any statement of Commission policy or interpretation
concerning a statute, regulation, or technical matter within its
[[Page 40885]]
jurisdiction that is intended to have general applicability and future
effect, but which is not intended to be binding in its own right and is
not otherwise required by statute to satisfy the rulemaking procedures
specified in 5 U.S.C. 553 or 5 U.S.C. 556.''
The Commission has determined that the rescission of the Guidelines
does not constitute a ``guidance document,'' and therefore, the
procedures in CFR part 1695 do not apply to the rescission. In issuing
the Guidelines, the Commission ``made a statement of Commission policy
or interpretation concerning a statute, regulation, or technical
matter.'' However, in merely rescinding the Guidelines without
replacing them with a different ``statement of Commission policy or
interpretation,'' the Commission is not issuing a ``guidance
document.''
This understanding is confirmed by the specific requirements of
part 1695, which contemplate that the procedures will apply only when
the Commission affirmatively makes a ``statement of Commission policy
or interpretation'' and not when the Commission rescinds such a
statement. Other provisions refer either to the ``repeal'' or
``rescission'' of guidance, thereby distinguishing rescission of
guidance from its adoption. See 29 CFR 1695.7(a), (e); 29 CFR
1695.8(d); 29 CFR 1695.9.
Excluding rescissions from 29 CFR part 1695 is also consistent with
Executive Order 13891, which prompted the issuance of 29 CFR part 1695.
Executive Order 13891 targeted the issuance of agency documents that
regulate stakeholders, including the potential misuse of guidance
documents to impose binding legal requirements. See Exec. Order No.
13891, Sec. 1 (Oct. 15, 2019) (``Americans deserve an open and fair
regulatory process that imposes new obligations on the public only when
consistent with applicable law and after an agency follows appropriate
procedures.''), rescinded by Exec. Order 13992 (Jan. 20, 2021)
(rescinded by Exec. Order 14148 (Jan. 20, 2025). Executive Order 13891
required agencies to adopt procedures ensuring that they do not issue
documents that improperly regulate stakeholders. The exclusion of
guidance rescissions from 29 CFR part 1695 is consistent with the
policy of that Executive Order.
G. Congressional Review Act
Out of an abundance of caution, the Commission has submitted this
document for review under 5 U.S.C. 801.
List of Subjects in 29 CFR Part 1608
Affirmative action plans, Equal employment opportunity.
PART 1608--[REMOVED AND RESERVED]
0
For the reasons discussed in the preamble, and under the authority of
42 U.S.C. 2000e-12(b), the Commission removes and reserves 29 CFR part
1608.
Signed this 1st day of July, 2026.
Andrea R. Lucas,
Chair, Equal Employment Opportunity Commission.
[FR Doc. 2026-13637 Filed 7-2-26; 8:45 am]
BILLING CODE 6570-01-P