It may be popular for companies to announce that they are going to hire a certain percentage of women and minorities, however, courts can view this as affirmative action and may weigh favorably in a reverse discrimination suit. Attorneys said in-house counsel should do all they can to make sure their companies’ diversity and inclusion programs open up the applicant pool rather than limit it to one group.

Esther Lander, a partner at Akin, Gump, Strauss, Hauer & Feld in Washington, D.C., said some of the confusion over affirmative action and diversity and inclusion initiatives comes from a federal mandate that requires federal contractors to develop an affirmative action plan.

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