Summary At a Glance
- The EEOC has rescinded its 1979 guidelines addressing voluntary affirmative action programs under Title VII.
- The guidelines previously offered a potential defense for employers that relied on qualifying affirmative action plans in good faith.
- Neutral recruiting, outreach, workforce analysis, nondiscrimination analyses, and development initiatives are not unlawful.
The Equal Employment Opportunity Commission (EEOC) has rescinded its 1979 Guidelines on Affirmative Action Appropriate Under Title VII and removed 29 CFR Part 1608.
The guidelines described circumstances in which employers could voluntarily consider race, sex, or national origin when addressing workforce imbalances or barriers to equal employment opportunity. They also provided a potential statutory defense for employers that acted in good faith and in reliance on the guidelines. This change is consistent with President Trump’s rescission of EO 11246, which defined affirmative action for women and minorities and placed reporting obligations on federal contractors. With the EO 11246 framework in place, few employers relied on the EEOC’s voluntary affirmative action guidelines to support demographic-based employment practices.
With the rescission, employers no longer have that specific EEOC framework or defense for future actions taken under an affirmative action plan. Employers with existing affirmative action plans that consider protected characteristics should review them with legal counsel.
Neutral Initiatives May Continue
The rescission does not mean that every program associated with equal opportunity, diversity, outreach, inclusion, or nondiscrimination is unlawful. Many employers use neutral initiatives to expand recruiting efforts, remove unnecessary job barriers, broaden access to development opportunities, or evaluate workforce trends. These practices are not automatically unlawful.
Examples include:
- Advertising jobs through a broad range of recruiting sources.
- Removing qualifications that are not necessary for the position.
- Making training, mentoring, and development programs broadly available.
- Reviewing aggregated workforce data to identify practices that may require further examination.
The primary concern is whether an individual’s protected characteristic affects an employment decision or access to an opportunity. Employers should focus on how programs operate in practice, not simply how they are labeled.
Why Demographic Data Still Matters
The rescission does not prohibit employers from collecting demographic information for lawful reporting, monitoring, and compliance purposes.
Demographic data can help employers complete required reports, review hiring and compensation outcomes, identify possible disparities, and respond to agency inquiries or litigation. A statistical difference does not automatically establish discrimination, but it may identify a practice that warrants further review.
For additional guidance on the case for continuing to collect demographic data, read our post, titled, Why Employers Should Keep Collecting Demographic Data Amid the EEOC’s Proposed Regulatory Changes.
Recommended Next Steps for Employers
Employers should avoid overcorrecting in response to the rescission. The more prudent approach is to preserve lawful, neutral initiatives while ensuring that employment decisions are individualized, job-related, consistently applied, and well documented. Nondiscrimination analyses or programs that monitor for disparate outcomes without favoring any particular demographic group (i.e., those that focus on ensuring equal employment opportunities) are not voluntary affirmative action plans and therefore are not impacted by the EEOC’s rescission.
Employers should:
- Review affirmative action, DEI, recruiting, mentoring, and advancement programs.
- Identify any practices that use protected characteristics as eligibility or selection factors.
- Confirm that outreach, development, and advancement opportunities are broadly available and administered using neutral criteria.
- Continue demographic data collection and reporting where required.
- Train hiring managers and other decision-makers not to use protected characteristics in employment decisions.
How HR Works Can Help
HR Works can assist employers with reviewing employment policies, demographic data practices, EEO reporting procedures, and related compliance obligations.
Current clients may contact their designated HR Consultant for additional information.
Not an HR Works client? Visit our website and complete a “Contact Us” form or call toll-free at 1-877-219-9062.
