In a recent article from Bloomberg Law, “Employers Downplay the ‘D’ in DEI Programs in Bid to Avoid Suits,” KBK partner Adam Herzog discussed an emerging strategy for businesses facing legal challenges to their racial diversity programs.

As companies attempt to defend their DEI initiatives from conservative lawsuits, some have responded by changing the eligibility criteria of their programs to remove references to minorities or other underrepresented groups. According to Mr. Herzog, the argument is that by changing the language, there’s “no longer an injury that the lawsuit can remedy.”

Although this argument is still being tested in the courts, Mr. Herzog says that businesses will likely take a proactive approach to changing the language of their programs to avoid legal challenges altogether. However, given the Supreme Court’s recent ruling on affirmative action, conservative groups are more emboldened to issue challenges to corporate DEI initiatives.

“They have a very favorable Supreme Court for the positions that they’re trying to take, and so they’re going to keep pushing the line as far as they can,” Mr. Herzog said.

Read the full article here.