Voluntary Diversity Initiative or Unlawful Discriminatory Preference?

Minimizing Exposure to Discrimination Claims When Implementing Inclusion Programs

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, April 17, 2012

Recorded event now available

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Course Materials

This CLE course will prepare employment counsel to develop and implement workplace diversity and inclusion programs. The panel will offer steps to mitigate risk, and will also review the OFCCP's affirmative action enforcement agenda and outline best practices for recruitment, as well as documentation relating to the same.


Many employers demonstrate their commitment to diversity by implementing initiatives that focus on the inclusion of employees from varied backgrounds and experiences in the corporation's culture. The challenge for these employers is ensuring that their efforts do not amount to unintended employment discrimination.

Several costly lawsuits over the past decade have alleged that a corporation's failure to meet its diversity goals is evidence of company-wide discrimination. Employees have also contended that programs focused on recruiting under-represented groups amount to unlawful reverse discrimination.

The federal government recently heightened its focus on inclusion by mandating diversity efforts in the new Dodd-Frank Act and by aggressively enforcing affirmative action laws among federal contractors through more rigorous audits by the Office of Federal Contract Compliance Programs (OFCCP).

Listen as our authoritative panel explains common legal pitfalls associated with the development and implementation of workplace diversity and inclusion programs and discusses steps employment counsel can take to mitigate risk. The panel will also review the OFCCP's affirmative action enforcement agenda and outline best practices for recruitment, as well as documentation relating to the same.



  1. Current legal and business trends regarding workplace diversity and inclusion
  2. Legal considerations with diversity programs
    1. Absence of diversity programs as evidence of discrimination
    2. Failure to meet diversity goals as evidence of discrimination
    3. Presence of diversity programs as evidence of reverse discrimination
    4. Attorney-client and work-product privileges
    5. Other considerations
  3. OFCCP enforcement of affirmative action
    1. Who is covered
    2. EEO-1 reporting requirements
    3. Key issues in OFFCP audits
    4. Potential pitfalls in affirmative action compliance


The panel will review these and other key questions:

  • In what circumstances might an employer's attempts to implement diversity and inclusion measures amount to employment discrimination based on race, gender or another protected status?
  • How can employers recruit diverse candidates without creating potential liability for reverse discrimination?
  • How can the atty-client privilege and work-product doctrine be used to protect diversity analysis documents from discovery in discrimination lawsuits?
  • What steps should federal contractors and subcontractors take to ensure that their affirmative action plans will withstand more rigorous OFCCP audits?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Margaret L. Watson
Margaret L. Watson

Of Counsel
McElroy Deutsch Mulvaney & Carpenter

She has more than 20 years litigation experience in employment law, alternative dispute resolution programs and...  |  Read More

Travis Gemoets
Travis Gemoets

Jeffer Mangels Butler & Mitchell

He represents management in all facets of labor and employment law, including claims of discrimination, harassment,...  |  Read More

Christine Hendrickson
Christine Hendrickson

Senior Counsel
Seyfarth Shaw

She is a member of the firm’s Labor and Employment OFCCP Compliance, Affirmative Action & Diversity Team. She...  |  Read More

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