The law firm Michael Best warns employers will likely face “increased scrutiny” of any affirmative action programs after a federal commission rescinded related guidelines.
After the U.S. Equal Employment Opportunity Commission last month rescinded its guidelines for these programs, the Milwaukee-based law firm recently rolled out an overview for employers, calling the change “significant but not surprising” given the Trump administration’s DEI stance.
While the change ends the “good-faith reliance employers could point to” when following the commission’s guidance for affirmative action programs, authors note it doesn’t mean every voluntary affirmative action plan is now unlawful. Previous Supreme Court decisions still hold sway, leaving “narrow room for carefully designed” remedial plans.
“Practically, however, the rescission of the guidance will continue to diminish employer appetites to take risk in these areas,” authors wrote.
The overview points to various “lower-risk” options for programs with protected characteristics for eligibility or targets, including using validated selection criteria, mentorship programs remaining open to all qualified employees, pay equity audits, bias training and more.
Given the federal rollback, employers should take the opportunity to review affected programs and “tighten documentation” as well as guardrails and related messaging, authors wrote.
The firm suggests auditing any DEI programs for recruiting, mentorship and promotions for protected characteristic-based eligibility, as well as confirming their legal basis with counsel.
While authors note Title VII of the Civil Rights Act of 1964 still remains in effect, they say the commission’s move signals it will “take a harder look at programs that account for protected characteristics” even when they’re framed as voluntary affirmative action.
Still, such programs can still be “defensible in limited circumstances” if they’re meant to remedy past discrimination and supported by a documented imbalance or barrier, as well as if they’re designed to avoid quotas or “undue harm” to others.
