7 minute read
Olivia-Faith Dobbie talks to Legal Women about the impact of the Rollback of US DEI Policies in the UK.
Olivia-Faith Dobbie
talks to Legal Women about the impact of the Rollback of US DEI Policies in the UK.
The day after taking office, President Trump issued Executive Order 14173 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”, aimed at curbing the so-called “illegal discrimination” that Trump believes DEI initiatives cause. On 23 April, Trump doubled down and, on a federal level, abolished the concept of indirect discrimination. The publicity surrounding this DEI rollback has unnerved employers in Great Britain (GB), leaving some wondering whether they should reduce their DEI initiatives here.
In this article, we explain some key differences between US and GB equality law and why companies in GB that are operating lawfully should not follow the US example. It should be noted that companies that contract with US federal government will be expected to comply with Trump’s Executive Orders or they may lose their contracts, even if the company is based outside of the US. But for all other GB-based companies, we argue that the Executive Orders have no effect.
The GB vs US context
US equality legislation is fundamentally different from that which applies here in GB. The most striking difference is the way in which the US approached affirmative action until the latest Executive Order. Affirmative action previously allowed employers in the US to take ‘protected characteristics’ (race, sex, age, sexual orientation etc.) into account in hiring and employment decisions, provided the measure was justified by a ‘manifest imbalance’ in ‘traditionally segregated categories’ and the policy had to be necessary to address that disparity and be time limited.
In GB, the Equality Act 2010 prevents less favourable treatment of people based on specific protected characteristics (i.e. race, sex etc.).
In GB, the Equality Act 2010 prevents less favourable treatment of people based on specific protected characteristics (i.e. race, sex etc.). The prohibition of less favourable treatment includes, of course, the prohibition of more favourable treatment meted out to one class of people, to the exclusion of others. Therefore, in GB, allowing race, sex etc. to be any part of the consideration for recruitment or promotion would be unlawful, unless the policy fell within the very narrow positive action exceptions below. As an example, if an employer gave priority to candidates of a specific ethnicity in hiring and promotion decisions (such as an automatic right to be interviewed) that would amount to discrimination against the candidates who do not share that race.
That said, the Equality Act 2010 has some very narrow exceptions that allow for a limited form of positive action in GB. The first, is the ‘tie-break’ provision where, if two candidates are genuinely equal in their merit, an employer can choose, for instance, the black person, if representation in the workforce is disproportionately low or if black people suffer a particular disadvantage. The scope is narrow. The candidates must be of equal merit – an employer cannot suppress the merit threshold to such a low point that all candidates appear equal. That was what happened in the case of Furlong v The Chief Constable of Cheshire Police, where the merit assessment was a pass or fail and the employer considered that all those who passed were equal. It then applied the tie-break clause to all who passed. An Employment Tribunal found that it was a fallacy to consider all who passed as being ‘equal’.
The second aspect to positive action in GB allows employers to take action to overcome or lessen disadvantage in respect of certain characteristics, to address disproportionately underrepresented groups of people or to address the different needs of people with that characteristic. It is not positive action in respect of selection, it aims to provide a permitted equality of opportunity based on protected characteristics rather than the forbidden equality of outcome. The action must be ‘a proportionate means of achieving a legitimate aim’ and the measure / policy cannot itself amount to discrimination of the group or groups that do not benefit. A real-life example of an employer getting it wrong arose in an April 2024 Employment Tribunal judgment. A police force appointed an ethnic minority Sergeant into a vacant Inspector role without giving anyone else the opportunity to apply for it. The Tribunal held that this amounted to discrimination against three white police officers interested in the role.
Another key difference is that in GB, indirect discrimination is unlawful. Indirect discrimination prohibits an apparently neutral rule that has a disproportionate adverse effect on a protected group. As an example, imagine an employer imposing a requirement to be fluent in English. This would be detrimental to a greater proportion of foreign nationals than British Nationals. However, under GB law, the employer has the opportunity to defend indirect discrimination by evidencing that the requirement is justified. Taking the above example, if the role in question was a professor of English Literature, the language requirement would likely be justified. If the role was to be a forklift truck driver in a warehouse, it would be less likely to be justified. Under US Federal law, there is no prohibition on indirect discrimination (known as ‘disparate impact liability’). Employees can still file private law suits and state enforcement agencies might still investigate such policies at a state level, but they are no longer prohibited at a federal level.
Beware of increased legal risk
Given that UK and US equality laws are fundamentally different, peeling back DEI initiatives in GB merely because that is the mood music on the other side of the Atlantic is nonsensical. GB equality law has not changed and the effective deletion of US-style affirmative action under US law brings the current US approach more closely into line with where GB has always been on that aspect. The punitive sanctions Trump has introduced to deter US companies from pursuing DEI initiatives do not apply to GB businesses that do not contract with the US government.
Indeed, we consider that it could expose GB based companies to an increased legal risk if they roll back legitimate DEI initiatives for several reasons:
1. It might be easier for claimant to establish liability for indirect discrimination under GB law against an employer that has no DEI policies / initiatives.
2. The statutory defence under s.109 of the Equality Act 2010—which protects employers from liability for acts of discrimination by employees—is already difficult to establish. Without DEI policies, it is even less likely to succeed.
3. GB employers are under a duty to take proactive measures (reasonable steps) to prevent sexual harassment. From next year, these duties will likely extend to most protected characteristics if the Employment Rights Bill is enacted as drafted. Employers without appropriate DEI policies may struggle to demonstrate compliance.
4. EHRC Codes of Practice recommend DEI training. Employment Tribunals must consider these Codes when deciding relevant cases. As such, the presence or absence of DEI training and policies can affect outcomes in discrimination claims.
Employers should however ensure that their existing DEI initiatives are compliant with the Equality Act 2010. Some employers misunderstand their duties, and in striving to lift up one group, they inadvertently disadvantage others thereby discriminating against them, as the above examples demonstrate. There is no substitute for bespoke expert advice in respect of any such initiatives. ■
Olivia-Faith Dobbie
Barrister, Cloisters Chambers,
Management Committee Member Employment Lawyers’ Association and Diversity Lead
