The End of Affirmative Action?

On June 30, 2026, the Equal Employment Opportunity Commission issued a press release confirming its decision to rescind longstanding agency guidance regarding affirmative action.  The EEOC voted to rescind both the “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964 as amended” and the corresponding “Compliance Manual Section 607 on Affirmative Action.” In publicizing its decision, the EEOC stated that it rescinded this guidance in response to the Supreme Court decisions over the last several years which have contradicted the guidance in those materials.  In explaining its decision, the Chair of the Commission stated that, consistent with the Supreme Court’s interpretation of the law, the action “reaffirms that Title VII’s protections apply equally to all American workers and that equal opportunity remains a defining commitment of our democracy.” 

The rescission of this guidance is a reflection of the recent changes on a national level repealing efforts to improve opportunities for historically underrepresented individuals in society and the push to eliminate diversity, equity and inclusion programs.  This change in the posture of the EEOC is significant, particularly for employers who have implemented DEI programs to ensure that they have a diverse workforce that is representative of the community that they serve. To ensure that employers are best positioned to operate within the new framework created by the EEOC’s decision, the following steps should be taken.

1. Employers should review their hiring and promotional policies to ensure that they do not favor one group over another.  This means that any quotas or stated preferences for members of particular demographic groups should be analyzed and eliminated.

• Selection criteria for specific positions should be focused on the requirements and demands of the job, not on whether an employee or an applicant is a specific gender or member of a specific demographic group. 

• Employers should also review their training and development programs to ensure that they are open to all employees and do not focus on specific demographic groups or genders. 

The fact that the EEOC has stated that it is committed to equal opportunity for all does not mean that employers cannot or should not continue to strive for a diverse workforce.  Instead, it simply means that employers need to be more intentional in terms of their hiring activities, including the development of their job descriptions and the training and education of their employees. 

As we have noted previously, federal law is only one factor to consider when developing hiring and employment policies.  Employers must also follow the requirements of state laws when making hiring decisions and engaging in recruiting activities.  Finally, the key to navigating the changes in the law is to ensure that all hiring decisions are made in accordance with legitimate business reasons and objective qualifications and not demographic considerations. It is also important for employers to document the reasons for the decisions so that they can establish that the decision was made for nondiscriminatory reasons.  myHRcounsel can assist you in navigating these changing employment laws and ensure that your policies are compliant with both state and federal requirements.