EEO Compliance Dispatch

The Equal Employment Opportunity Commission submitted a request to the White House to rescind its 1979 guidance regarding voluntary affirmative action plans.

Given the Trump Administration’s stance opposing diversity, equity, and inclusion initiatives, this move is not surprising and will certainly get the blessing of the White House. But the rescission is unlikely to have a significant effect on employers.

I blogged about the EEOC’s guidance on voluntary AAPs back in 2021, when DEI initiatives were the norm for employers. The guidance generally outlines efforts employers can take to remove impediments to equal opportunity in employment.

Significantly, the guidance provides a safe harbor for employers who adhere to the requirements for voluntary AAPs: an affirmative defense to claims of “reverse” discrimination.

Federal contractors were required to develop written AAPs to comply with Executive Order 11246 (rescinded by President Trump in in 2025), but the applicable regulations had different procedures. However, the EEOC handled complaints involving these mandatory AAPs in accordance with its guidance.

What’s going away: The EEOC’s current guidance on voluntary AAPs

When the guidance was issued in 1979, the EEOC noted that Title VII of the Civil Rights Act was enacted “to improve the economic and social conditions of minorities and women by providing equality of opportunity in the work place” and that Congress intended for employers to “act on a voluntary basis to modify employment practices and systems [that] constituted barriers to equal opportunity. . . .”

The guidance further provides as follows:

The principle of nondiscrimination in employment because of race, color, religion, sex, or national origin, and the principle that each person subject to Title VII should take voluntary action to correct the effects of past discrimination and to prevent present and future discrimination without awaiting litigation, are mutually consistent and interdependent methods of addressing social and economic conditions which precipitated the enactment of Title VII. Voluntary affirmative action to improve opportunities for minorities and women must be encouraged and protected in order to carry out the Congressional intent embodied in Title VII.

Notably, the EEOC’s guidance does not presume that “affirmative action” in this context necessarily involves race- or sex-conscious decision-making. In fact, the guidance allows employers to take race- and sex-conscious actions only if all conditions are satisfied. Any measures that do take race or sex into account must be strictly limited in time and scope.

The guidance allows employers to engage in voluntary affirmative action in three circumstances:

• Adverse effect. If an analysis shows actual or potential adverse impact caused by existing or contemplated practices.
• Effects of prior discriminatory practices. “[T]o correct the effects of prior discriminatory practices,” which “can be initially identified by a comparison between the employer’s work force, or a part thereof, and an appropriate segment of the labor force.”
• Limited labor pool. If, “[b]ecause of historic restrictions by employers, labor organizations, and others, there are circumstances in which the available labor pool, particularly of qualified minorities and women, for employment or promotional opportunities is artificially limited.”

If one of these circumstances exists, an employer can establish a voluntary AAP, which is a written document containing (1) a reasonable self-analysis, (2) a reasonable basis for concluding action is appropriate, and (3) reasonable action. 

The guidance provides examples of “reasonable actions” employers can take, which include

• Establishing goals that “take into account the availability of basically qualified persons in the relevant job market.”
• Focusing recruitment efforts on underrepresented groups.
• Designing selection procedures to reduce adverse impact on protected groups.

As noted above, employers who fully comply with the guidance when developing a voluntary AAP can establish an affirmative defense to a claim of discrimination against members of the “majority,” including whites and males.

Rescission of the guidance: Not much of a change?

Although the EEOC’s 1979 guidance has been in existence for decades, very few employers seem to use it today. And any employer who was still using it has probably already pivoted in response to the Trump Administration’s position on DEI efforts.

A rescission of the EEOC’s guidance will not necessarily render all voluntary AAPs unlawful. Action plans to increase diversity or ensure fair access to employment opportunities that do not take race or sex into account are, and would continue to be, generally acceptable.

But employers would lose the benefit of an affirmative defense endorsed by the EEOC.

Perhaps most significantly, rescission would appear to remove any remaining basis for the EEOC to consider lawful any race- or sex-conscious decision-making.

In light of the proposed rescission, employers who have voluntary AAPs consistent with the EEOC’s guidance should take these measures now:

• Monitor the EEOC’s progress in rescinding the guidance.
• Review all voluntary AAPs to determine whether they are still in effect.
• Assess the contents of voluntary AAPs to ensure that they comply with Title VII.
• “Sunset,” modify, or do away with existing voluntary AAPs, where appropriate.

For guidance or assistance in this area, please contact a member of Constangy’s EEO/Contractor Compliance, Reporting & Analytics Practice Group.