Amy Tu, Esq.
Executive Vice President and Chief Legal and Compliance Officer
Target Corporation
Dear Ms. Tu:
We write to express our concern regarding Target’s recent decision to scale back its commitments to diversity, equity, and inclusion. Diversity, equity, and inclusion initiatives are not only consistent with the law but are often necessary to ensure compliance with it, as indicated in recent guidance from state attorneys general.[i] Indeed, and as you know, many diversity, equity, and inclusion initiatives emerged as measures to address past discrimination and promote equal opportunity. These efforts are not only vital to fostering fair and inclusive workplaces but are critical to ensuring legal compliance. Abandoning these efforts increases your liability risk under federal and state law.
The National Employment Lawyers Association is the nation’s largest professional membership organization focused on empowering workers’ rights lawyers, and the National Institute for Workers’ Rights is an advocacy organization focused on making it harder for employers to violate workers’ rights and easier for workers to get justice. We fear that the retreat from diversity, equity and inclusion from companies like yours misses the following realities:
- Taking Away Diversity, Equity, and Inclusion Programs Will Increase Your Liability Risk Because…
- Biases Against Women, People of Color, and Others Will Continue to Operate and…
- The Diversity, Equity, and Inclusion Programs That Counteract Those Biases Will be Gone, Leading to More Discrimination.
- Taking Away Diversity, Equity, and Inclusion Programs Will Increase Your Liability Risk
By counteracting biases, diversity, equity, and inclusion programs play a critical role in creating equitable workplaces. Their removal, however, increases the likelihood of discriminatory practices and thus the risk of legal liability. Moreover, the activities around walking back such initiatives themselves may be used as evidence against employers in discrimination litigation.
Evidence of discriminatory intent or causation. Corporate decisions to abandon diversity, equity, and inclusion efforts can be used as evidence of bias or discriminatory intent. Consider, for example, a case where a company at issue ended a program to recruit from historically Black colleges and universities shortly before they declined to interview a well-qualified candidate from such a school. If that candidate were to bring a Title VII disparate treatment claim, they would have a strong claim that the decision to end the program is evidence of racial bias.
- In this light, though we agree that strict quotas in hiring run the risk of race-based decision making, Target’s abandonment of even aspirational goals runs the risk that qualified candidates will be overlooked, leading to an increase in discrimination claims.
Executives questioning the value of diversity, equity, and inclusion initiatives may also signal bias, allowing a jury to infer that an employment decision was made “because of” race, gender, or another protected trait.
- A clear recent example is Meta’s CEO Mark Zuckerberg who—at a time when he was rolling back diversity, equity, and inclusion initiatives—said publicly that he thought companies had become “culturally neutered” and needed more “masculine energy.”[ii] Meta conducted layoffs a few weeks later, and Zuckerberg’s comments likely increased the severance amounts paid to women, the number of women who opted to sue instead, or both. Similar sentiments–about gender, race, or other characteristics—have no doubt been echoed privately at many companies and could come out during discovery in discrimination litigation brought by women and people of color.
Undermining “reasonable care” in harassment claims. Under Title VII, employers are required to demonstrate that they exercised reasonable care to prevent and correct workplace harassment, or else face liability.[iii] The case law underscores that the overall work environment is crucial; a retreat from diversity, equity, and inclusion initiatives can signal a decline in workplace culture, much like how the Supreme Court found the employer’s superficial anti-harassment policy in Faragher inadequate despite having a policy.[iv]
- Target’s decision to refocus its employee resource groups on professional development and mentoring risks abandoning their important role of creating a sense of belonging where workers can be themselves at work and fulfill their potential. This purpose is critical in both fostering inclusion and building worker confidence to address discrimination. By shifting the focus of these groups, Target may be seen as failing to maintain a workplace environment that actively prevents harassment and supports minority and women workers. Target’s restructuring could be interpreted as evidence that its anti-harassment policies are insufficient to meet the standard of reasonable care.
- Some companies have stopped submitting information to public indexes to benchmark their progress on diversity, equity, and inclusion related goals. This could also be used as evidence of a lack of reasonable care.
- For example, the Human Rights Campaign Foundation reviews policies designed to promote workplace equality, such as whether companies include sexual orientation and gender identity in their nondiscrimination policy. If companies stop participating and that leads to not taking certain measures to prevent discrimination and harassment, that would be powerful evidence for an LGBTQ+ employee to show that the employer failed to use “reasonable care” to create a safe and inclusive work environment.
Settlements often include equity and inclusion measures. Recent settlements illustrate a critical point: if companies walk back diversity, equity, and inclusion measures, they may be compelled to reinstate or expand such initiatives as part of future settlements—but only after paying significant damages for the discrimination that takes place in the interim.
- For example, in 2023 a judge approved a $215 million settlement against Goldman Sachs in a sex discrimination case stemming from the company’s use of biased evaluation metrics. As part of the settlement, Goldman Sachs was required to revise its performance evaluation and promotion processes by measures such as requiring that managers discuss job-relevant criteria for promotion with Vice Presidents who report to them, mandating written manager feedback for all employees, and conducting an annual pay equity analysis overseen by an independent labor economist—initiatives that fall squarely underthe diversity, equity, and inclusion umbrella.[v]
- Similarly, Disney agreed to a $43.3 million settlement in 2023 to resolve gender pay discrimination claims and the equitable relief included retaining a labor economist to analyze and address pay equity.[vi]
By proactively maintaining robust diversity, equity, and inclusion programs, employers can avoid the costly and disruptive process of being ordered to implement these measures under legal scrutiny.
- Biases Against Women, People of Color, and Others Will Continue to Operate
There will be increased liability risk for companies because despite existing legal protections and social progress, research consistently demonstrates that women and people of color still face discrimination at every stage of employment. Target’s own demographic data—and recent lawsuits—highlight the structural inequities that persist within its workforce. People of color comprise 56% of Target’s total workforce yet reflect only 28% of the leadership team.[vii]
- Studies show that resumes with distinctively Black names receive 36% fewer callbacks than identical resumes with white names, a disparity that has remained largely unchanged for 25 years.[viii]
- Women, particularly women of color, face significant pay gaps and underrepresentation in leadership roles, with projections showing it will take 22 years until women achieve parity in senior leadership, and 48 years for women of color.[ix]
- Women are promoted less often than men even when controlling for factors such as education, experience, and hours worked.[x]
- There is evidence of discrimination against religious minorities, people of certain ethnic backgrounds, and LGBTQ+ individuals as well.[xi]
Just last year, the Equal Employment Opportunity Commission recovered nearly $700 million for over 21,000 workers with discrimination claims.[xii] And as you know, Target has settled multiple lawsuits in recent years relating to discrimination in its hiring and recruiting practices. In 2018, you agreed to a $3.7 million settlement of a lawsuit that alleged Target’s background check process was biased against thousands of Latinos and African Americans seeking jobs.[xiii] Then in 2013, you settled an age discrimination lawsuit which alleged you posted job ads directed toward younger workers only on a social media platform.[xiv] Under the settlement, you agreed to maintain and expand your existing practices in recruitment to avoid discrimination.
- The Diversity, Equity, and Inclusion Programs That Counteract Those Biases Will be Gone, Leading to More Discrimination
Many diversity, equity, and inclusion programs implement evidence-based strategies to ensure workplace outcomes are determined by merit, not discrimination. These initiatives include structured hiring practices that emphasize skills over subjective impressions, broad-based recruitment efforts that demonstrably increase diverse representation, and dedicated diversity officers who promote accountability across organizations.[xv] Studies consistently show that companies implementing these systematic approaches see measurable improvements in recruiting and retaining qualified diverse candidates.
- Employee resource groups contribute significantly to workplace inclusion by fostering community-building and trust amongst workers.[xvi] They also provide leadership with essential feedback that can inform policies and practices aimed at preventing discrimination.
- Regular pay audits identify and address compensation disparities, while formal mentorship programs and structured evaluation systems ensure fair access to promotions and leadership opportunities.[xvii]
- Furthermore, diversity, equity, and inclusion efforts encompass a wide range of practices that promote inclusion, such as providing physical accommodations like ramps, offering parental leave policies, and creating spaces for religious practices like prayer rooms.
These measures both support workers and minimize the risk that an organization discriminates against workers.
In light of this research, we are concerned that concluding the Racial Equity Action and Change (REACH) initiatives will make it harder for Target to achieve the goals for its Black workers that were included in the REACH initiative such as “We’ll create a workplace where Black team members can build meaningful careers and experience success at every level.” and “We’ll focus on development, career progression and advancement of Black team members.”[xviii] This would be a mistake considering research shows that Black workers are already 23% less likely to receive substantial support for advancement.[xix] Research also shows that Black women face significant gaps in representation in leadership roles, for every 100 men promoted to manager, only 58 Black women are promoted.[xx] These disparities highlight the ongoing need for targeted support and structured initiatives to advance opportunities for Black workers within the company. Without these kind of initiatives, Target’s Black workers may well be discriminated against for promotions and in compensation.
We urge Target to recommit to its diversity, equity, and inclusion initiatives that encourage equal opportunity, fairness and legal compliance, as the CEOs of leading corporations such as Costco, Apple, Microsoft, and Deutsche Bank have done in recent weeks.[xxi] After all, many diversity, equity, and inclusion measures are not only not “illegal”; they are either legally required or legally advisable to prevent discrimination. Abandoning these efforts not only undermines your efforts to recruit and retain the best people but also increases the risk of liability.
Besides the legal risks we describe here, recent data also indicates that your customers may also have concerns. Following your January announcement to scale back your diversity, equity, and inclusion efforts, Target experienced a notable decline in foot traffic.[xxii] In contrast, Costco, which has maintained and stood by its diversity, equity, and inclusion initiatives, reported an increase in foot traffic during that same period.[xxiii] This trend suggests consumers are likely responding negatively to your rollback on diversity, equity, and inclusion policies.
The National Institute for Workers’ Rights would welcome an opportunity to meet with your team to discuss how Target can continue its diversity, equity, and inclusion efforts in a manner that aligns with both legal obligations and business objectives. We remain committed to supporting efforts to create workplaces where every qualified person has a real chance to compete and contribute their talents, while being treated with dignity and respect.
Sincerely,
Karen Maoki, Interim Executive Director
National Employment Lawyers Association
Jason Solomon, Director
National Institute for Workers’ Rights
cc: Target Board of Directors
[i] Attorneys General of Massachusetts & Illinois, Guidance Regarding Diversity, Equity, Inclusion, and Accessibility Employment Initiatives (Feb. 13, 2025), https://www.marylandattorneygeneral.gov/News%20Documents/021325_DEI_Guidance.pdf.
[ii] Joseph Bernstein, The ‘Manosphere’? It’s Planet Earth, The New York Times (Feb. 1, 2025), https://www.nytimes.com/2025/02/01/style/trump-zuckerberg-masculinity.html.
[iii] See Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) (“It would therefore implement clear statutory policy and complement the Government’s Title VII enforcement efforts to recognize the employer’s affirmative obligation to prevent violations and give credit here to employers who make reasonable efforts to discharge their duty.”); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764 (1998) (noting that making employer liability contingent “in part on an employer’s effort to create [antiharassment policies and effective grievance] procedures, … would effect Congress’ intention to promote conciliation rather than litigation in the Title VII context, and the EEOC’s policy of encouraging the development of grievance procedures”) (citation omitted).
[iv] Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
[v] Michelle Chapman, Goldman Sachs Settles Gender Discrimination Suit for $215 Million, The Associated Press (May 9, 2023), https://apnews.com/article/goldman-sachs-settlement-gender-equity-b9373d369cb70165565ec83abe03b8c3?utm_source=copy&utm_medium=share.
[vi] Meg James, Disney Agrees to Pay $43 Million to Settle Lawsuit Over Women’s Pay, Los Angeles Times (Nov. 26, 2024), https://www.latimes.com/entertainment-arts/business/story/2024-11-26/disney-agrees-to-pay-43-million-to-settle-lawsuit-over-womens-pay.
[vii] Id.
[viii] Lincoln Quillian, Devah Pager, Ole Hexel, & Arnfinn H. Midtbøen, Meta-Analysis of Field Experiments Shows No Change in Racial Discrimination in Hiring Over Time, 114 Proc. Nat’l Acad. Sci. U.S.A. 10870, 10870 (Sept. 12, 2017), https://doi.org/10.1073/pnas.1706255114.
[ix] Id.
[x] Deborah L. Rhode, Ambition: For What? 101 n.79 (2021).
[xi] Rachel C. Schneider et al., How Religious Discrimination is Perceived in the Workplace: Expanding the View, Socius, 8 (Jan. 24, 2022), https://doi.org/10.1177/23780231211070920; Lincoln Quillian & John J. Lee, Trends in Racial and Ethnic Discrimination in Hiring in Six Western Countries, 120 Proc. Natl. Acad. Sci. U.S.A. 6 (Jan. 31, 2023), https://doi.org/10.1073/pnas.2212875120; Brad Sears et al., LGBTQ People’s Experiences of Workplace Discrimination and Harassment, The Williams Institute (Aug. 2024), https://williamsinstitute.law.ucla.edu/publications/lgbt-workplace-discrimination/#:~:text=Discrimination%3A%20About%20one%20in%20five,some%20point%20in%20their%20lives.
[xii] Jenny R. Yang and Pamela Coukos, Trump’s DOJ Can’t Rewrite the Law on DEI, Fortune (Feb. 20, 2025), https://fortune.com/2025/02/20/trump-dei-law-companies/ (citing EEOC Press Release, January 17, 2025).
[xiii] Charisse Jones, Target Agrees to Settle a Lawsuit Alleging Discrimination Against Blacks and Latinos, USA Today (Apr. 5, 2015), https://www.usatoday.com/story/money/2018/04/05/target-agrees-settle-lawsuit-alleging-discrimination-against-blacks-and-latinos/491474002/.
[xiv] Ginger Christ, Target, Union Workers Reach Resolution Over Job Ad Age Discrimination Claims, HR Drive (June 1, 2023), https://www.hrdive.com/news/target-union-workers-reach-resolution-over-job-ad-age-discrimination-claim/651806/.
[xv] Joan Williams et al., Traditional Bias Training Doesn’t Work; Bias Interrupters Do, The Conference Board, 6-7 (June 24, 2024), https://www.conference-board.org/publications/traditional-bias-training-does-not-work-bias-interruptors-do; Alexandra Kalev & Frank Dobbin, Retooling Career Systems to Fight Workplace Bias: Evidence from U.S. Corporations, 153 Daedalus 213, 221 (2024), https://doi.org/10.1162/daed_a_02056; Frank Dobbin & Alexandra Kalev, The Civil Rights Revolution at Work: What Went Wrong, 47 Ann. Rev. of Socio. 281, 290 (2021), https://doi.org/10.1146/annurev-soc-090820-023615.
[xvi] Matthew Leger, Building High-Trust Workplaces: The Role of Employee Resource Groups in Fostering Stronger Employee-Employer Relationships, Am. Enter. Inst., 3-4 (Dec. 2023), https://www.jstor.org/stable/resrep55292.
[xvii] Lisa Nagele-Piazza, The Importance of Pay Equity, Society for Human Resource Management (Feb. 21, 2021), https://www.shrm.org/topics-tools/news/hr-magazine/importance-pay-equity; Dobbin, at 289-290; Joan Williams et al., Traditional Bias Training Doesn’t Work; Bias Interrupters Do, The Conference Board, 8-10 (June 24, 2024), https://www.conference-board.org/publications/traditional-bias-training-does-not-work-bias-interruptors-do.
[xviii] Here are Target’s Latest Actions to Advance Racial Equity, Target (Aug. 17, 2020), https://corporate.target.com/news-features/article/2020/08/reach.
[xix] Bryan Hancock et al., Race in the Workplace: The Black Experience in the US Private Sector, McKinsey & Company (Feb. 21, 2021), https://www.mckinsey.com/featured-insights/diversity-and-inclusion/race-in-the-workplace-the-black-experience-in-the-us-private-sector.
[xx] Alexis Krivkovich et al., Women in the Workplace 2024: The 10th-Anniversary Report, McKinsey & Company, 8 (Sept 17, 2024), https://www.mckinsey.com/featured-insights/diversity-and-inclusion/women-in-the-workplace#/.
[xxi] Sara Braun, Companies like Costco and Apple are Defending Their DEI Programs Despite Nationwide Pushback, Fortune, (Jan. 29, 2025), https://fortune.com/2025/01/29/companies-like-costco-and-apple-are-defending-their-dei-programs-despite-nationwide-pushback-these-are-the-companies-standing-by-their-policies.
[xxii] Andrew Adam Newman, Exclusive: Foot Traffic Fell at Target After it Backtracked on DEI, Retail Brew (Feb. 20, 2025), https://www.retailbrew.com/stories/2025/02/20/exclusive-foot-traffic-fell-at-target-after-it-backtracked-on-dei.
[xxiii] Id.
