On May 27, 2026, the EEOC sent a proposal to the Office of Management and Budget's Office of Information and Regulatory Affairs that would rescind the 1979 interpretative rule, 29 CFR 1608, titled "Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964."  There is very little information as to the reasoning for this action, but it aligns with the administration’s approach to diversity and affirmative action. Further, if this regulatory action is approved, it could lead to more lawsuits against diversity initiatives, including, for example, the use of employee resource groups, community outreach, and the like.

The rule had provided information on how to do legal voluntary affirmative action. Specifically, the guidance provided that employers may establish affirmative action to correct the effects of prior discrimination and/or to expand a limited labor pool or based on an analysis that current or contemplated policies are having an adverse impact. The guidance also requires that voluntary affirmative action plans must involve a "reasonable self-analysis," and steps taken under a plan "must be reasonable in relation to the problems disclosed."

Prior to 2025 when President Trump issued Executive Order 14173 that revoked the federal government’s affirmative action requirements under Executive Order 11246 and before the Harvard case, voluntary affirmative action plans were permissible under certain circumstances. The U.S. Supreme Court set the table for voluntary affirmative action plans under two different cases. First, United Steelworkers of America v. Weber, 443 U.S. 193 (1979) set the table for when voluntary affirmative action plans were legal. In this case, Weber, who is white, worked as a laboratory assistant at a chemical plant in Gramercy, Louisiana. His company, Kaiser Aluminum and Chemical Corp., had a policy where trainees were selected based on the basis of seniority, with the proviso that at least 50% of the trainees were to be Black until the percentage of Black skilled craft workers in the plant approximated the percentage of Black workers in the local labor force. The Supreme Court upheld the program holding that the affirmative action plan was transitional in nature and was not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.

With respect to gender, the Supreme Court in Johnson v. Transportation Agency, 480 U.S. 616 (1987) addressed gender based voluntary action. In this case, Johnson, a male Santa Clara County Transportation Agency employee was passed over for a promotion in favor of Diane Joyce, a female employee who Johnson argued was less qualified. The Supreme Court upheld the Transportation Agency’s voluntary affirmative action based on Weber affirming that the voluntary affirmative action plan was aimed at "eliminat[ing] manifest . . . imbalances in traditionally segregated job categories," the plan did not "unnecessarily trammel the interests of" male employees, and that the plan was temporary. 

If a case were to go to the Supreme Court concerning voluntary affirmative action, it may still be allowed as a solution when there is prior discriminatory action. For example, in 1999 Coca Cola was hit with a racial discrimination court case which resulted in voluntary affirmative action activities to correct the wrongs alleged. On the other hand, Coca Cola was hit recently with an EEOC lawsuit concerning that the company discriminated against men when it planned a two-day networking trip for women employees only. This activity may or may not have legal basis. It is still to be determined.

The key consideration for HR is to consult legal counsel to determine whether any adjustments to diversity initiatives are needed and to conduct a review to ensure all activities align with current legal requirements.

Source: Law360 5/28/26, Bloomberg Law 5/28/26, Forbes 2/23/26