Employment Law Update: EEOC Withdraws Longstanding Guidance on Voluntary Affirmative Action Plans
The withdrawn materials encompass two principal items. The first is a 1979 interpretive rule, “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964,” which had set a framework under which employers could voluntarily adopt affirmative action measures without running afoul of federal anti-discrimination law. The second is Section 607 of the EEOC’s compliance manual, originally adopted in 1981, which offered a detailed analysis of how voluntary plans could be structured to satisfy legal requirements. According to the EEOC, these materials were now outdated in view of evolving case law, and the Affirmative Action guidance no longer accurately reflected the legal landscape.
Chair Lucas and Commissioner Brittany Panuccio, both Republican appointees, approved the withdrawal over the dissent of the EEOC’s lone Democratic member, Commissioner Kalpana Kotagal. Notably, the vote occurred behind closed doors after a previously scheduled public meeting on the matter was canceled. Commissioner Kotagal objected that the agency had discarded a carefully circumscribed tool that allowed employers to proactively address the lingering effects of past discrimination, a purpose she described as central to Title VII’s design. She further criticized the procedural approach, calling the closed-door deliberation “inconsistent with good government principles.”
Key Takeaways for Employers
While the withdrawal of agency guidance does not alter the statutory text of Title VII itself, it represents a clear shift in enforcement philosophy: the current EEOC views many voluntary affirmative action programs as potentially unlawful race- or sex-conscious employment practices.
Employers should undertake a thorough review of any existing voluntary affirmative action plans or diversity-related initiatives, especially those developed in reliance on the now-withdrawn 1979 interpretive rule or Section 607. Employers should also verify that all hiring, promotion, and other employment decisions are grounded in non-discriminatory criteria and seek legal counsel before adopting or continuing any race- or sex-conscious voluntary measures.
Whiteford’s Labor and Employment Practice Group will continue to monitor developments in this rapidly evolving area and advise clients as further guidance emerges.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.