EEOC Votes to Rescind Interpretive Affirmative Action Guidelines

The U.S. Equal Employment Opportunity Commission (EEOC) recently voted to rescind its interpretive affirmative action guidelines and related compliance manual.

As the EEOC outlined in a June 30 statement, the agency withdrew a pair of roughly 40-year-old agency policy documents: the agency interpretive guidelines titled “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964 as Amended” (Affirmative Action Guidelines) and the related “Compliance Manual Section 607 on Affirmative Action” (Compliance Manual on Affirmative Action).

According to the EEOC, the commission found that the guidelines “ran afoul of the text of Title VII, and contradicted Supreme Court case law that has developed over the four decades since the Affirmative Action Guidelines were issued.”

When released in 1979, the stated purpose of the guidelines were 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” via “race, sex, or national origin conscious … decisions, according to the EEOC.

“Yet, the Supreme Court has held Title VII of the Civil Rights Act of 1964 provides the “same protections for every ‘individual.’”

The Commission also voted to rescind the related Compliance Manual on Affirmative Action, which the EEOC said was rendered obsolete by the rescission of the guidelines, and “was inconsistent with Supreme Court case law and key developments in the lower courts.”

Littler Mendelson attorneys Jim Paretti and David Goldstein offered analysis of the agency’s recent decision, saying the move is “consistent with the EEOC’s other efforts to signal an intention to scrutinize employment practices in which individuals appear to be treated differently based on sex, race or national origin.”

The EEOC opting to rescind its affirmative action guidelines “is in line with the Trump administration’s ongoing attempts to eliminate the consideration of race and sex in almost all workplace contexts,” the attorneys wrote.

As Paretti and Goldstein pointed out, the EEOC views its withdrawal of these guidance documents as being consistent with the text of Title VII and Supreme Court precedent. But,  whether landmark affirmative action-related cases United States Steelworkers v. Weber and Johnson v. Transportation Agency and Weber “still remain good law is for the Supreme Court to decide,” they added.

Given recent developments of the law in this area, the EEOC and other federal agencies’ increased focus on “unlawful DEI” and public scrutiny of organizations’ DEI-related efforts, the attorneys advised employers to “work closely with counsel to ensure their workplace policies are compliant with Title VII and other federal, state and local civil rights law.”