EEOC Moves to Rescind Affirmative Action Safe Harbor

The EEOC’s interpretation of Title VII continues to evolve under the Trump administration. On May 27, the EEOC put the White House on notice that it intends to rescind longstanding interpretive regulations which allowed private employers to engage in voluntary affirmative action plans in certain circumstances. This move signals the agency’s enforcement priorities and could set the stage for compliance changes for employers who engage in  affirmative action plans.

The EEOC made its 1979 interpretative rule to reflect the United States Supreme Court’s holding in Griggs v. Duke Power Co., which established that employers “should be concerned with the effect on its employment practices of circumstances which may be the result of discrimination by other persons or institutions.” After the interpretive rule was passed, the Supreme Court rejected a challenge to an employer’s voluntary affirmative action plan in United Steelworkers v. Weber, confirming that affirmative action plans should be allowed under Title VII. A decade later, the Court reiterated the legality of affirmative action plans in Johnson v. Transportation Agency.

The EEOC’s existing interpretive rule provides a potential safe harbor under Title VII for employers who choose to engage in voluntary affirmative action plans in certain contexts, including:

1. 1. 1. “[B]ased on an analysis which reveals facts constituting actual or potential adverse impact if such adverse impact is likely to result from existing or contemplated practices”
      2. “[T]o correct the effects of prior discriminatory practices”
      3. Where “historic restrictions by employers, labor organizations, and others” have “artificially limited” the available pool of individuals for employment or promotional opportunities

The EEOC’s intention to rescind this interpretive rule follows the trend set by:

• • • The administration and EEOC’s plan to downplay enforcement of disparate impact claims
    • The administration’s 2025 elimination of the requirement for federal contractors to submit affirmative action plans
    • The EEOC’s recent proposal that large employers should not be required to report their employees’ demographic data through the EEO-1 reporting process

If the EEOC rescinds its interpretive regulations regarding voluntary affirmative action strategies, it is possible the agency could claim that current affirmative action strategies violate Title VII. Such a claim would have to be interpreted against the backdrop of controlling Supreme Court precedent under Weber and Johnson. As the landscape of federal regulations and guidance regarding EEO policies and affirmative action continues to change, employers should evaluate their current plans and watch these developments closely.

Please contact Caroline Perlis or any member of Phelps’ Labor and Employment team with questions.