EEOC Rescinds Affirmative Action Guidance for Private Employers

On June 29, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind two longstanding policy documents that guided voluntary affirmative action in the private sector for roughly 40 years. The rescinded documents are the “Affirmative Action Guidelines” (29 C.F.R. Part 1608), which were officially removed from the Code of Federal Regulations on July 6, 2026, and the related “Compliance Manual Section 607 on Affirmative Action.” 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.”

Here is what Florida business owners need to know.

What Were These Guidelines?

First issued in 1979, the Affirmative Action Guidelines gave employers a government-approved roadmap for creating voluntary affirmative action plans (i.e., programs that used race-, sex-, or national-origin-conscious goals to improve employment opportunities for minorities and women). If an employer followed the Guidelines, it could claim a legal safe harbor under Section 713(b)(1) of Title VII. For decades, that safe harbor served as a critical shield for employers who voluntarily adopted affirmative action plans. Going forward, the shield is no longer available for new employment programs, though employers who previously relied on the Guidelines in good faith may still have a defense for past actions.

Why Did the EEOC Rescind Them Now?

Several major legal and policy developments set the stage for the EEOC’s vote:

Executive Orders (January 2025). President Trump issued two Executive Orders that fundamentally changed federal policy. The first directed the termination of all federal DEI and DEIA offices, positions, mandates, policies, programs, and activities within the federal government. The second, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” revoked Executive Order 11246, which since 1965 had required federal contractors to take affirmative action. It directed the Office of Federal Contract Compliance Programs (OFCCP) to “immediately cease” holding contractors responsible for affirmative action. The revocation of E.O. 11246 eliminated the principal regulatory regime that had driven many employers to adopt voluntary plans, significantly reducing the Guidelines’ practical relevance.

The Ames decision (June 2025). The Supreme Court unanimously held in Ames v. Ohio Department of Youth Services that “majority group” employees (such as white or heterosexual employees) can bring Title VII discrimination claims on exactly the same terms as anyone else. The Court emphasized that Title VII protects “any individual” and that no heightened evidentiary standard applies to majority-group plaintiffs. EEOC Chair Lucas cited Ames in announcing the rescission of the Guidelines.

Shifting case law—but Weber and Johnson still stand. The Guidelines reflected the same legal principles later confirmed in United Steelworkers v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987), in which the Supreme Court recognized that Title VII permits certain voluntary affirmative action plans in limited circumstances. Those decisions have not been overturned and remain binding precedent. The EEOC’s rescission does not, and cannot, disturb Weber or Johnson; only the Supreme Court can overrule its own decisions. However, whether this precedent retains its full vitality in light of more recent jurisprudence is an open question. The rescission reflects the agency’s growing willingness to challenge employment practices that differentiate among individuals on the basis of race, sex, or national origin.

What This Means for Your Business

Here is what has—and has not—actually changed:

What changed: The EEOC no longer endorses voluntary, race- and sex-conscious affirmative action plans. Employers cannot rely on the rescinded Guidelines to structure new affirmative action programs and claim the Section 713(b)(1) safe harbor going forward.

What did not change: The EEOC vote does not make existing affirmative action plans automatically illegal. The EEOC rescinded its own agency guidance, it did not (and could not) overturn Supreme Court decisions. Weber and Johnson remain binding law, and voluntary plans that satisfy those decisions’ requirements (addressing a manifest imbalance, not unnecessarily restricting other employees’ opportunities, and being temporary) can still be lawful. Employers who previously adopted plans in genuine reliance on the now-rescinded Guidelines may still assert a good-faith defense for past actions.

What also did not change: The rescission does not repeal or alter any state or local affirmative action statutes, municipal ordinances, public contracting requirements, or court-ordered remedial programs. Those obligations remain independently enforceable. Employers subject to such mandates or consent decrees should evaluate how those requirements interact with Title VII and the EEOC’s current enforcement posture.

The bottom line: The enforcement environment has fundamentally shifted. The EEOC now views race- and sex-conscious employment decisions with deep skepticism, and the Commission’s 2026 enforcement priorities expressly target DEI initiatives. If your business continues to operate a race- or sex-conscious plan today, it faces meaningfully higher EEOC scrutiny—even though the underlying Supreme Court precedent permitting such plans has not been overruled.

Please contact any attorney on the Lowndes Labor and Employment Law team if you have questions about this article or any other employment law issues impacting your Florida business.