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In-house counsel who work alongside and manage the human resources department within their companies may want to hire more job candidates who identify with a specific group on the diversity spectrum, but other candidates may see a preference and sue over affirmative action practices.

Lawyers tell Corporate Counsel that federal affirmative action law gets confusing for companies when they’re strengthening their diversity and inclusion hiring, especially now amid the latest anti-Black racism protests. To ensure diversity and inclusion in the workforce, in-house counsel should take charge of analyzing the gaps in staffing.

“Unless a company conducts what is known as an ‘underutilization’ analysis to determine the availability of qualified minorities and women within a reasonable recruiting area, they should make clear that these are purely aspirational goals,” said Esther Lander, a partner at Akin, Gump, Strauss, Hauer & Feld.

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Kibkabe Araya

Kibby Araya is the in-house desk editor for Corporate Counsel. She can be reached at [email protected], Twitter and LinkedIn. She is based in Los Angeles.

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