EEOC Proposes Rescinding Long-Standing Affirmative Action Rule

The U.S. Equal Employment Opportunity Commission (EEOC) has submitted a proposal to the White House regulatory office that would rescind a 1979 interpretive rule addressing voluntary affirmative action plans under Title VII of the Civil Rights Act of 1964. This is the last procedural step before the final rule would be published to the federal register. 

The proposal, submitted May 27, would eliminate the interpretative rule that has been in place for more than four decades regarding how private employers may implement affirmative action strategies without violating federal anti-discrimination law.

The EEOC's notice of proposed rescission does not explain the agency's reasoning. However, the move is consistent with efforts by EEOC Chair Andrea Lucas to increase scrutiny of diversity, equity and inclusion (DEI) programs that the Trump administration has characterized as discriminatory.

The 1979 interpretative rule outlines circumstances under which private employers may adopt voluntary affirmative action plans outside of requirements imposed by settlement agreements, state laws or federal contractor obligations. Under the rule, employers are encouraged to conduct a self-analysis to determine whether current or past employment practices have had an adverse impact on protected groups.

According to the interpretative rule, that self-analysis can provide a basis for concluding that affirmative action measures are appropriate. The rule further states that employers may take actions that are "reasonable" in relation to their findings, including establishing goals and timetables intended to eliminate discriminatory patterns.

مجموعة أدوات: مجموعة أدوات BEAM SHRMللتنوع والاندماج

If finalized, the rescission would remove the EEOC's longstanding guidance on voluntary affirmative action plans. The proposal could also affect how employers evaluate initiatives designed to address workforce disparities.

The action follows other changes affecting affirmative action and workforce reporting requirements. Federal contractors previously faced separate obligations to maintain affirmative action plans under regulations administered by the Department of Labor's Office of Federal Contract Compliance Programs. Those requirements were eliminated after President Donald Trump rescinded the executive order that established them. 

The EEOC is also pursuing the rescission of EEO-1 data collection requirements and related reporting mechanisms that require companies and public employers to report workforce demographic information, including data on race, sex, and national origin.

The proposed rescission must undergo formal notice-and-comment period, meaning that interested stakeholders can submit a public comment, and the EEOC must review them before it is published as a final rule. Employers may want to monitor the rulemaking process and assess whether any existing policies or programs could be affected by changes in the federal government's approach to affirmative action and DEI-related enforcement.