DEI Under Title VII and EEOC Policy
By Ward Heinrichs
The Equal Employment Opportunity Commission (EEOC) has rescinded its longstanding guidance on voluntary affirmative action under Title VII, marking a significant shift in federal enforcement of workplace diversity, equity, and inclusion (DEI) programs.
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Key Changes
● Guidance Withdrawn: On June 29, 2026, the EEOC voted to rescind its 1979 interpretive guidance and related compliance manual section, which had provided a framework for employers to design voluntary affirmative action plans. The EEOC stated this guidance conflicted with Title VII's text and recent Supreme Court precedent, emphasizing equal protection for every individual.
● Federal Shift: This move aligns with broader federal actions, including Executive Order 14281 and a Department of Justice opinion declaring the EEOC's disparate-impact guidelines unconstitutional. The trend is toward a "color-blind" interpretation of Title VII, focusing on intentional discrimination claims regardless of the claimant's majority or minority status.
Recommendations for Employers
1. Avoid Quotas, Targets, and Preferences: Refrain from using quotas and demographic targets that could be seen as proxies for preferential treatment.
2. Focus on Individual Merit: Ensure employment decisions are based on individual merit. Review your evaluation methods and avoid using DEI criteria.
3. The EEOC May Review Your Hiring, Promotion, and Retention Practices: Anticipate more enforcement activity, including reverse discrimination claims and Commissioner-initiated charges.
For now, the EEOC's new stance on workplace voluntary affirmative action plans only directly affects affirmative action related to Title VII, which regulates discrimination based on race, color, religion, sex, or national origin. That means it technically does not affect age-related affirmative action under the Age Discrimination and Employment Act (ADEA), but employers may still want to avoid age-related affirmative action plans, anticipating that the EEOC may choose to attack them too. The best policy for now is to promote the most qualified person for a job and to only use merit-based criteria when hiring, promoting, and firing.
Finally, watch for new Supreme Court DEI cases and for EEOC DEI policy changes. If you need help with that, ask a lawyer!
Based in San Diego, California the Employment Law Office of Ward Heinrichs represents both employers and employees in almost all areas of labor law. He and his firm litigate cases that have been filed in many different parts of California. Keep up with him at https://bestemploymentattorneysandiego.com/
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