EEOC Seeks to Revoke Rule Shielding Affirmative Action Plans (1)

The EEOC submitted a proposal to the White House regulatory office that would remove a decades-old rule that helps protect companies seeking to implement affirmative action plans voluntarily.

The Equal Employment Opportunity Commission plan eliminates the agency’s 1979 regulation that sought to provide clarity on implementing affirmative action strategies in line with Title VII of the 1964 Civil Rights Act.

The EEOC’s brief notice of proposed rescission sent to the White House on May 27 doesn’t include its reasoning for such a change. But the move would be in line with Chair Andrea Lucas’ plans to ramp up scrutiny of diversity and inclusion programs that the Trump administration deems discriminatory.

Elimination of the EEOC’s rule could boost lawsuits challenging diversity programs, which Lucas has indicated she’s interested in pursuing in the form of bias claims brought by White men.

Federal contractors had separate obligations to submit affirmative action plans under the Department of Labor’s Office of Federal Contract Compliance Programs’ regulations, but those requirements were cut when President Donald Trump last year rescinded the executive order establishing them.

The EEOC’s rule outlines how outside of those obligations, or a requirement through a settlement agreement or state laws, private employers can put in place voluntary appropriate affirmative action plans without violating Title VII.

Those plans should include a reasonable self analysis to determine if employment practices currently have or have had an adverse impact on protected groups of workers, which helps create a reasonable basis to conclude if affirmative action is appropriate, according to the rule.

The rule states that plans should take actions that are “reasonable” in relation to their self-analysis, which could include goals and timetables that can help eliminate discriminatory patterns.

The EEOC is also in the process of rescinding its EEO-1 data collection and other similar forms which require companies or public employers to report on the race, sex, and national origin of their workforces.