The EEOC proposed a rule that would scrap a decades-old regulation that provided employers with legal cover to voluntarily implement affirmative action plans.
Why it matters: The 1979 guidance provided a crucial safe harbor: employers who designed plans in good-faith reliance on the guidelines could use them as a defense against discrimination claims. If approved, the rescission removes that shield—including for plans already in place.
The backdrop: The proposal is the latest action of a year-long unwinding of the federal affirmative action architecture by the second Trump administration. President Trump revoked Executive Order 11246 in January 2025, and the main federal contractor compliance watchdog (OFCCP) proposed rescinding its affirmative action obligations in July 2025. The 1979 guidelines were the last major piece of the framework still on the books.
Still some legal leeway: The underlying Supreme Court doctrine in United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987) still permits, in very narrow circumstances, voluntary affirmative action plans that address manifest imbalances in traditionally segregated job categories. EEOC’s action here doesn't overturn that case law, but it strips away the EEOC's interpretive roadmap and the regulatory defense employers have relied on this for compliance.
The EEOC continues to chip away: In addition to the above, under Chair Lucas’ tenure, the EEOC has moved to scrap guidance spelling out legal protections against discrimination on the basis of gender identity and company demographics data reporting requirements (EEO-1), as well as closed investigations into disparate impact claims.
What’s next: The proposal is currently under White House review and not yet public. After review, it is subject to a 60-day comment period. A final rule rescinding the guidance will likely hit in late 2026 or early 2027.
What CHROs should consider:
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Audit any plan citing the 1979 guidance. Plans drafted in conformity with the guidelines lose their regulatory defense once rescission is final, even if adopted years ago.
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Reexamine programs adjacent to formal AAPs. Targeted recruiting, sponsorship pipelines, and development programs tied to underrepresentation analyses sit on the same legal foundation and face the same scrutiny under the EEOC's March 2025 DEI guidance.
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Plan for potential “reverse” discrimination claims. A final rescission would provide more fuel to the so-called “reverse” discrimination litigation fire, and removing the safe harbor gives such claims a better chance of success.
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Watch state law. California, New York, Illinois, and others maintain their own anti-discrimination regimes that may continue to permit—or even encourage—voluntary remedial measures, creating multi-jurisdictional complexity for national employers.
