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Target faces backlash: Should employers curtail their DEI programs?

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They should also pay attention to language in policies, and ensure that when discussing diversity and inclusion, categories other than only protected groups (such as race and gender) are included in definitions.

Take a look at employee training and career-building programs, he said. For example, mentorship programs, internships, fellowship programs and sponsorships are all vulnerable to litigation if they are viewed to be offered to one group over another. Job descriptions, too.

“If you say, ‘Our goal is to increase diversity,’ you can make decisions based on differences like experience and perspective — you can’t make it based on things like race or gender. So you want to make sure that your definition of diversity is broad enough,” Segal said.

Employers, HR must take steps to defend against DEI backlash

The Review pointed out that the investor lawsuit against Target, if successful, could lead to more such actions by anti-ESG and anti-DEI groups. This, along with other increases in DEI backlash against companies, makes it even more important for employers to defend themselves, Segal said.

“If you care about DEI, you’re going to want to make sure that it’s less vulnerable to attack. A lot of DEI programs grew very quickly… and a lot of programs do have low-hanging fruit for plaintiff lawyers. I think to be defensive without taking steps to be able to defend is really a mistake,” he said.

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