Last week, the Equal Employment Opportunity Commission announced its revocation of decades-old regulations explaining when employers could adopt voluntary affirmative action plans. Most affirmative action efforts were tied to rescinded federal contracting requirements. However, the EEOC had long taken the position that in limited circumstances, employers could engage in narrow and temporary affirmative action initiatives to correct past discriminatory practices. In many circumstances, these efforts were part of a settlement of claims relating to those past practices.

The EEOC said that its rescission of the rules was based on recent Supreme Court and other federal court precedents. The agency explained that under Title VII and recent precedents, voluntary affirmative action plans would discriminate against the non-favored employee classifications even if they resulted from discriminatory employment practices which may have previously benefitted those individuals. Presumably, the EEOC would view an employer’s efforts to correct such practices through use of affirmative action as reverse discrimination even if individual hiring decisions were made based on qualifications alone.

In recent years, voluntary remedial affirmative action efforts have become relatively rare. While the EEOC’s rule rescission may have little practical effect for employers, this move again illustrates the agency’s focus on practices it believes have resulted in discrimination against majority employee classifications.

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