US federal: EEOC withdraws affirmative action guidance under Title VII

At a glance

• The United States Equal Employment Opportunity Commission (EEOC) has withdrawn two affirmative action guidance documents, stating that they are inconsistent with Title VII of the Civil Rights Act of 1964 (Title VII) and recent Supreme Court decisions.
• The rescinded guidance outlined when employers could adopt voluntary affirmative action measures and rely on a 'good faith' defense to address discrimination or workforce imbalances.
• The EEOC stated that the guidance conflicts with the Supreme Court’s recent decision in Ames v. Ohio Department of Youth Services, which addressed Title VII’s application to all individuals, regardless of group status
• Existing Supreme Court precedent remains in force and recognizes limited circumstances in which affirmative action may be permitted.
• The development follows recent agency statements focused on race- and sex-based employment practices and intentional discrimination claims.

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The EEOC has withdrawn affirmative action guidance addressing diversity, equity, and inclusion (DEI) policies and race or sex conscious employment decisions.

According to the EEOC, the guidance was no longer consistent with Title VII or subsequent Supreme Court case law. The agency cited the Supreme Court’s recent decision in Ames v. Ohio Department of Youth Services, stating that Title VII provides the same protections to all individuals and does not apply different standards based on membership in a particular group.

One withdrawn document outlined when employers could voluntarily implement affirmative action measures. It also formed the basis of a 'good faith' defense that employers could assert in connection with affirmative action programs designed to address past or present discrimination or workforce imbalances. Under the guidance, those measures were expected to be temporary, narrowly tailored, and structured to minimize effects on other employees.

The EEOC also rescinded a related compliance manual, stating that it had become outdated following the withdrawal of the underlying guidance and was inconsistent with more recent judicial developments.

Some organizations have suggested that the removal of the guidance may discourage employers from taking lawful steps to promote workplace inclusion and equal opportunity. The withdrawal does not overturn existing Supreme Court precedent recognizing that certain affirmative action measures may, in limited circumstances, be permissible under Title VII.

The withdrawal follows recent EEOC statements addressing race- and sex-based hiring practices, quotas, and claims involving intentional discrimination. Recent statements by the US Department of Justice have also addressed disparate-impact enforcement.

Employers may wish to review DEI-related initiatives and affirmative action measures, particularly where employment decisions expressly take protected characteristics into account.

Legal uncertainty remains regarding how courts may apply existing precedent to affirmative action and DEI-related employment practices.