President Trump’s re-election left many companies wondering what the future would hold for their DEI initiatives and they haven’t had to wait long to find out. Since he came to power, Trump has signed a flurry of Executive Orders, several of which relate to DEI, including:
- “Ending Radical and Wasteful Government DEI Programs and Preferencing” – demanding the end of all “discriminatory programs” in the federal government, abolishing all federal DEI offices, positions and equity action plans and scrapping DEI performance requirements for federal staff.
- “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” – scrapping affirmative action mandates for federal contractors, demanding that federal contractors promise not to engage in DEI initiatives that violate federal law, and requiring federal agencies to proactively deter DEI initiatives in the private sector that involve “illegal DEI discrimination and preferences”.
- A further order (with a provocative title) which opposes the concept of gender identity.
The first order aims to wipe away all DEI initiatives from federal government (leading to the spectacle of all DEI employees being put on immediate leave and federal DEI websites going dark). The second order, aimed at the private sector, is more guarded – this demands the ending of “illegal” practices. In other words, not all DEI initiatives, only those that overstep the boundaries of federal US law. Federal contractors are no longer to be held responsible for promoting diversity or taking “affirmative action” (more on this below) and will no longer be allowed or encouraged to engage in “workforce balancing”. The Attorney General must identify key sectors of concern and “the most egregious and discriminatory DEI practitioners” in each sector within 120 days of the order, and federal agencies must nominate large employers for compliance investigations.
The third order directs the federal government to recognise only two sexes, male and female, as defined in the order in biological terms.
Alongside this, President Trump has appointed Republican Andrea Lucas as acting chair of the Equal Employment Opportunity Commission (EEOC). Ms Lucas takes a conservative view of the boundaries of US anti-discrimination law and has been a vocal critic of the agency’s previous guidance in some areas.
US companies will be thinking carefully about their current approach to DEI, and we saw many large US organisations roll back aspects of their DEI initiatives even before Trump’s inauguration. This has included, for example, employers pulling out of diversity benchmarking surveys and targets for their suppliers around diversity. Some have opened access to programmes aimed at advancing minority groups to all employees. Initiatives are being dropped not because they are thought to be illegal, but to stay out of the spotlight of federal agencies scanning for employers to name or investigate.
Shifts in the US often impact employers across the Republic of Ireland and Northern Ireland, both directly (because they are in scope of federal contracting) or indirectly as US practice influences practice here. In this article, we’ll explore what this impact could be, why key initiatives must stay in place and what companies can be doing now.
1. Affirmative action
Let’s begin with the US concept of “affirmative action”, which has evolved in the US over many years and involves taking steps to overcome the effects of past disadvantage or discrimination, especially in education and employment.
In the education context, the practice of affirmative action led several leading US colleges to consider and take account of a student’s background characteristics (especially race) when deciding whether to offer a place. This type of “race-based” admission scheme was famously ruled to violate US federal civil rights law in the US Supreme Court’s landmark decision in 2023 (see our GB colleagues’ comments on that here).
In the employment context, affirmative action was always regulated differently because a different part of US civil rights law governs employment. Nonetheless, employers in the US have a long-standing practice of adopting various affirmative action plans and DEI initiatives short of making offers of employment based on race or other protected classes – and in fact many such plans were (until Trump’s re-election) mandated by the federal government.
While US affirmative action plans have always had legal guardrails in place, when looked at from an Irish perspective, we have sometimes seen them go further than would be allowed here. For example, we see practices such as the so-called Rooney rule (which involves using an interview quota for ethnic minority candidates) being relatively common in the US, whereas this type of practice has always been much more legally risky in the Republic of Ireland and Northern Ireland.
In the Republic of Ireland, we have the restricted concept of “positive action”. It is crucial not to equate this with the US concept of affirmative action. Ireland’s concept of positive action is derived from EU equality law which essentially provides that measures which are directed at rectifying an existing inequality may be justified, provided there is no automatic preference for one protected group over another (for example, in hiring or promotion). EU caselaw (mostly in the context of gender equality) has established that any rigid unconditional preference for one group over another will be unlawful. However, softer quotas which allow equally qualified candidates from an underrepresented group to be treated preferentially, but which still allow for individual consideration of circumstances, are lawful.
The position is a little more complicated in Northern Ireland, where we do have concepts of “affirmative action” and “outreach positive action”. It is important to note that these are not the same as the US approach to affirmative action and were established to encourage legal ways to remove barriers to any underrepresented community from accessing employment and to encourage more applications from those communities. Whilst it is good practice to set goals and timetables to see if such action is having an impact, they are not legally binding targets or quotas.
From a historic background these concepts referred refer to taking steps within the law to bring about a change in the workforce so that it broadly reflects the composition of the population from which it is drawn and involves a combination of legislative measures, monitoring and reporting requirements, and proactive initiatives to address historical inequalities and ensure fair participation from both communities This is in the special context of Northern Ireland, and we’re able to offer expert advice on that if you need it.
The US federal laws on affirmative action and DEI initiatives now face a period of testing and reshaping, both through the courts and various official guidance from federal government agencies. Trump’s position - and seemingly that of Ms Lucas at the EEOC – is that many US employers have gone too far into giving preferential treatment to certain minority classes and have overstepped legal boundaries, which must now be emphasised more firmly. Even if those US legal boundaries are re-drawn, however, this does not need to impact Irish DEI initiatives because:
- we have our own laws strictly governing the boundaries of DEI initiatives
- those laws differ from those in the US, and already tend to operate more restrictively compared to what we’ve seen in the US
- a redrawing/redefining of US legal boundaries is therefore likely to bring US law closer to the Irish/Northern Irish position in any event.
2. DEI training
Training often forms a significant part of a company’s DEI programme. It is not currently clear where the position in the US will end up, but we are aware that some types of training in the US have proved controversial, for example racial sensitivity training.
It’s important to be clear that, from an Irish perspective, taking steps to roll back training programmes could open companies up to legal risk.
In the Republic of Ireland, an employer will be able to defend a discrimination claim in the Workplace Relations Commission (WRC) if it can provide that they took such steps as were reasonably practicable to prevent the discriminatory act. This will nearly always include providing regular training to employees on their equality policies. This is also a requirement in the Irish Human Rights and Equality Commission’s Code of Practice on Sexual Harassment and Harassment in the Workplace, which the WRC is required to consider when deciding if an employer has discharged the burden of proving that it did not harass an employee who has brought a claim for harassment (the burden of proof is on the employer here once the employee has established a prima facie case of discrimination i.e. facts which, absent any other explanation, could evidence discrimination).
This is the same position in Northern Ireland, where in discrimination cases, a respondent is able to rely on the statutory defence that it took all reasonable steps to prevent the discriminatory acts. A cornerstone of this is that an employer should provide equal opportunities and anti-harassment training, and also provide targeted training such as for recruitment panels and for managers in dealing with equal opportunities and harassment issues in the workplace. Claims before the Industrial Tribunals and Fair Employment Tribunal in Northern Ireland will consider the issues of having policies and procedures in place to prevent discrimination and harassment as well as consider what training has been provided to staff and managers. As such, we continue to recommend that such training is mandatory for all staff.
Notwithstanding the legal position, providing effective training on avoiding discrimination can also be a helpful way to reduce conflict arising in the workplace and limit the risk of litigation.
3. Trans protection
In the Republic of Ireland, case law has established that trans people are protected from discrimination under the gender ground in the Employment Equality Acts. This is similar to the position in the US, where protection at federal level is based on a Supreme Court ruling that the protected class of “sex” encompasses gender identity. However, this is distinct to Great Britain, where trans protection is enshrined in the Equality Act through the protected characteristic of “gender reassignment”. Protection of trans people from discrimination will continue to be based on the gender ground in Ireland.
In Northern Ireland there is a specific protected characteristic of “gender reassignment” but, unlike in Great Britain, this is much narrower in that in Northern Ireland, “gender reassignment” means a process which is undertaken “under medical supervision” for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex.
4. DEI reporting
Except for gender pay gap reporting, there is currently no legal obligation to carry out DEI reporting in the Republic of Ireland. From this year, employers with 50 or more employees will have to publish gender pay gap reports.
In Northern Ireland, employers with more than ten full time employees continue to be obliged to report on the community background of their staff and to register with the Equality Commission for Northern Ireland, as well as complete statutory annual returns, albeit this is limited in scope to perceived religions affiliation and sex. This information is required in relation to employees, job applicants, appointees and apprentices. Registered employers must also review the composition of those employed in and ceasing to be employed in its workforce at least once every three years (an Article 55 Review) and must review their employment practices for the purpose of determining whether members of both communities receive (and are likely to continue to receive) fair participation in employment their businesses. Employers must also determine whether affirmative action would be reasonable and appropriate.
The requirements as to who must be included in an annual monitoring return are different, and narrower, than are likely to be used for gender pay gap reporting. Despite having legislation in place for 8 years to allow for gender pay gap reporting, this is not a current requirement in Northern Ireland, although a public consultation on regulations needed to implement this, along with disability and ethnicity pay gap reporting, concluded in February 2025 and this is expected to be in place by early 2027. We wrote about this further here.
5. Trends across Ireland and the US
We already see increasing conflict and divisions within the workforce as a growing trend in Ireland, alongside the US. We have seen more legal claims regarding employees asserting their rights to express controversial or divisive beliefs, and we are advising more frequently on difficult situations where employers must balance competing rights and interests at work. A perceived backlash against DEI initiatives in the US could well encourage Irish and Northern Irish employees to share their views more openly.
Irish employers should not assume that everyone in their workforce is on board with all of their DEI initiatives. Going forward, we expect to see a greater emphasis on employers explaining the steps that they are taking in this area, and why these actions are necessary and proportionate. We also expect an ongoing emphasis on inclusion and respect for colleagues, with more focus on bringing your best self to work and less emphasis on bringing your whole self to work.
Additionally, Ireland often adopts trends and language from the US workplace, especially as so many US companies have their EU headquarters in Ireland - this was the case when the concept of DEI was originally introduced. We could well see any US shifts, for example a preference for the word “inclusion” over “equity”, or even a return to “equal opportunities” over “diversity” being adopted within the Republic of Ireland and Northern Ireland. We may also see a move away from DEI specific roles (e.g. Diversity and Inclusion Officer) towards more general HR roles.
All of that said, it’s important to bear in mind that the legal, cultural and political situation in Ireland is not the same as in the US.
6. What Irish employers can be doing now
| Communicate with US colleagues, stakeholders and customers/clients where you have a supplier relationship | Explain that we have our own legal regime for positive action, which is already restricted. Be ready to affirm that you are acting within the laws that apply here. Explain that the US concept of affirmative action doesn’t apply in Ireland and although the term is used in Northern Ireland, this is very different from the US concept. Quotas are especially contentious, so be ready to confirm that you don’t operate them. If you have targets, be ready to explain them. So-called preferencing is also highly contentious - be ready to explain that you don’t prefer any protected group over another when it comes to making employment decisions (except if being used as a “tie-breaker” between two equally qualified candidates). Keep in mind that the focus in the US, at least as regards the private sector, is on initiatives that have gone too far, not all DEI policies. Looking ahead, the Republic of Ireland government has published the General Scheme of a Bill to transpose certain aspects of the EU Pay Transparency Directive. The draft Bill requires employers to provide information about salary levels or ranges in job advertisements and prohibits employers from asking job applicants about their own pay history or their current rate of pay. We wrote about this further here. Stay on top of further developments in this area and be ready to communicate these legal imperatives and affirm your commitment to operating within the required legal frameworks. The position is less clear in NI. The Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission have published their view that, under the dynamic alignment principle captured in the Windsor Framework post Brexit, the majority of the PTD obligations will need to be implemented. Whether that happens and how the Directive obligations interact with new gender pay gap reporting obligations remains to be seen. |
| Explain your DEI initiatives | Prepare for challenge. Understand what you are doing and why. It’s no bad thing to review the effectiveness of your DEI initiatives, including your employee resource groups, but this does not mean that you must row back on your commitment to DEI. |
| Keep training | DEI training remains crucial for Irish employers and disregarding it would come with legal risk. We continue to recommend that anti-discrimination and harassment training is mandatory for all staff. Indeed, in Ireland and Northern Ireland, training is specifically mentioned in the Codes of Practice issued by the Irish Human Rights and Equality Commission and the Equality Commission for Northern Ireland respectively. |
| Focus on reducing workplace conflict | Highlight your values and the expectations you have about how staff will behave towards each other. Don’t allow disrespectful comments in workplace communication channels. Support managers with resolving conflict and focus on inclusion and respect. |
| Keep complying | Ensure that you continue to comply with obligations under anti-discrimination law and relevant codes of practice published by the IHREC or the WRC, and the Equality Commission for Northern Ireland. |
