ab ovo

The EEOC removes the Title VII affirmative action safe harbor

6 July 2026 · written 16 September 2026

The Equal Employment Opportunity Commission rescinded its guidelines on affirmative action under Title VII on 6 July 2026, removing 29 CFR part 1608 from the Code of Federal Regulations.1 The guidelines were proposed in 1977 and adopted in 1979 to tell employers “the circumstances under which, and the means through which, they could take race- and sex-conscious affirmative action.”1 The Commission gives four reasons: they “are inconsistent with the statutory language and were not supported by Supreme Court precedent when issued; they are obsolete; they only apply to affirmative action to benefit women or minorities; and they do not take into account multiple relevant Supreme Court cases.”1 The rule is “effective on July 6, 2026, and applicable as of June 29, 2026.”1

  1. The concrete effect is the loss of a statutory defence. The Commission states it plainly: “the rescission of the Guidelines means that employers will not be able to assert a defense under section 713(b) for actions taken pursuant to an affirmative action plan after the rescission.”1 Section 713(b) of Title VII provides that no person is liable for an unlawful employment practice if they plead and prove the act “was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission,” and that the defence “shall be a bar to the action or proceeding.”2 Part 1608 was such a written interpretation. Removing it removes what employers were relying on, and the Commission treats any reliance interests as “minimal.”1

  2. On whether the governing precedent still governs, the Commission declines to say. United Steelworkers v. Weber and Johnson v. Transportation Agency are the decisions upholding voluntary affirmative action under Title VII.34 The rule addresses them in one sentence: “[t]o the extent there is Supreme Court caselaw that has blessed the use of affirmative action as consistent with Title VII, see Weber, 443 U.S. 193; Johnson, 480 U.S. 616, the Commission is not taking a position herein on whether those decisions have been effectively overruled; the Commission defers to DOJ’s position regarding that question.”1 It adds that the question “need not be addressed here because the existence of these cases does not require that the Commission promulgate or retain outdated and unhelpful guidance, including a safe harbor, on the topic of affirmative action into perpetuity.”1 An agency deferring to the Department of Justice on whether Supreme Court decisions remain binding is the mechanism Executive Order 14215 establishes, and the DOJ position it defers to is the Office of Legal Counsel opinion of 9 June 2026, cited in the rule at slip opinion 24 (see OLC holds the EEOC’s disparate-impact rules unconstitutional).15

  3. The account of the guidelines’ origin stops before the reversal. The background section records that when the guidelines were proposed, “[t]he district court and the Fifth Circuit in Weber had already held that the challenged affirmative action program at issue, a racial quota, violated Title VII,” and that “the then-Commission chose to preemptively issue guidance.”1 What that passage does not add is what happened next: the Supreme Court reversed the Fifth Circuit in June 1979 and upheld the plan.3 The rule does cite the Supreme Court’s decision later, in the sentence deferring to DOJ, and so does not conceal it — but the reasoning that the Commission acted against the run of authority rests on the two lower courts that were overturned.13

  4. The guidelines went out without the process that brought them in. The Commission relies on the interpretive-rule exemption at 5 U.S.C. 553(b)(A) and on Perez v. Mortgage Bankers Association, where the Supreme Court held the exemption “categorical.”16 It is explicit about the asymmetry: “[a]lthough the Guidelines were issued after notice and comment, the Commission has voted to approve a final rescission of the Guidelines without following the same process,” because in 1977 the then-Commission used notice and comment believing “public comment would be useful,” not that it was required.1 The rescission sits within the contractor and Title VI rollbacks the corpus has already recorded (see Labor rescinds the Executive Order 11246 regulations and finds it lacks authority for them and Seventeen agencies delete disparate impact from their Title VI regulations).7

Footnotes

  1. Equal Employment Opportunity Commission, “Rescission of Guidelines on Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as Amended,” final interpretive rule, 29 CFR part 1608, 91 FR 40879–40885, published 6 July 2026, FR Doc. 2026-13637, effective 6 July 2026 and applicable as of 29 June 2026. Quoted: the summary and its four reasons; the background on the 1977 proposal and 1979 adoption, quoting 29 CFR 1608.1(a), and the account of the Weber litigation; the obsolescence discussion listing Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), Students for Fair Admissions, 600 U.S. 181 (2023), Ricci v. DeStefano, 557 U.S. 557 (2009), Johnson, 480 U.S. 616 (1987), Weber, and Taxman v. Board of Education, 91 F.3d 1547 (3d Cir. 1996), and stating that Bakke, 438 U.S. 265, “was effectively overruled in SFFA”; the passage citing the Department of Justice opinion of 9 June 2026 at slip opinion 24 and describing a “sea change” citing Callais v. Louisiana, 145 S. Ct. 1131 (2026) and Parents Involved, 551 U.S. 701 (2007); the deference sentence; the reliance-interests discussion and the section 713(b) consequence; and the notice-and-comment discussion relying on 5 U.S.C. 553(b)(A) and Perez. The rule cites Weber twice and inconsistently — once as “United States Steel Workers of Am. AFL-CIO-CLC v. Weber, 433 U.S. 193 (1979)” and once as “Weber, 443 U.S. 193.” The decision is reported at 443 U.S. 193 and the party is United Steelworkers of America; the 433 citation is to a different volume. Verified against CourtListener on 16 September 2026. https://www.federalregister.gov/documents/2026/07/06/2026-13637/rescission-of-guidelines-on-affirmative-action-appropriate-under-title-vii-of-the-civil-rights-act-of ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7 ↩8 ↩9 ↩10 ↩11 ↩12 ↩13

  2. Section 713(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(b): “In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission … . Such a defense, if established, shall be a bar to the action or proceeding.” https://www.govinfo.gov/content/pkg/USCODE-2023-title42/html/USCODE-2023-title42-chap21-subchapVI-sec2000e-12.htm ↩

  3. United Steelworkers of America v. Weber, 443 U.S. 193, decided 27 June 1979, holding that Title VII does not forbid private employers and unions from voluntarily adopting race-conscious affirmative action plans, and reversing the Fifth Circuit. Citation and date confirmed against CourtListener. https://www.courtlistener.com/opinion/110125/united-steelworkers-of-america-v-weber/ ↩ ↩2 ↩3

  4. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987), applying Weber to a sex-conscious plan. Cited as the rule cites it; the opinion was not independently consulted. ↩

  5. Office of Legal Counsel, “Constitutionality of Disparate-Impact Liability Under Title VII,” 50 Op. O.L.C. __ (9 June 2026). The opinion concluded that the EEOC’s validation-study and affirmative-action regulations are unlawful. See OLC holds the EEOC’s disparate-impact rules unconstitutional. ↩

  6. Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015), holding that the Administrative Procedure Act’s exemption for interpretive rules is categorical and that an agency need not use notice and comment to repeal an interpretive rule it had adopted through notice and comment. Cited as the rule cites it, at 96 n.1, 100 and 101. ↩

  7. The Office of Federal Contract Compliance Programs rescinded the Executive Order 11246 implementing regulations at 91 FR 54444, and seventeen agencies removed disparate-impact provisions from their Title VI regulations. See Labor rescinds the Executive Order 11246 regulations and finds it lacks authority for them and Seventeen agencies delete disparate impact from their Title VI regulations. ↩

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