Government agencies rarely admit that a document they issued four decades ago can be tossed aside. But the Equal Employment Opportunity Commission (EEOC) did exactly that last week. The Commission voted to rescind its 1979 interpretive guidelines on voluntary affirmative action under Title VII, along with a related section of its Compliance Manual. Those materials had long described circumstances in which employers could adopt voluntary affirmative-action plans intended to address workplace imbalances or barriers to opportunity for women and minorities.
Most importantly, the old guidance gave employers something of a security blanket. Employers that acted in good-faith reliance on the EEOC’s written interpretation could potentially invoke a statutory defense if their program was challenged. The EEOC’s rescission takes that blanket away. Employers should be careful not to overstate what changed: the EEOC did not amend Title VII, eliminate every lawful affirmative-action program or overrule Supreme Court decisions recognizing that voluntary affirmative-action plans may be permissible in limited circumstances.
Still, the agency’s determination to yank away an object of comfort is obvious. The current EEOC is far less interested in defending race-, sex-, or national-origin-conscious employment practices than its predecessors . Employers should inventory programs involving hiring, promotions, mentoring, fellowships, leadership development, recruiting or other employment opportunities. Programs designed to broaden outreach and ensure fair opportunity may remain both valuable and lawful. Programs that reserve benefits or make decisions based expressly on protected characteristics deserve a more careful review.
