President Trump’s DEI orders: what do they mean for UK employers?

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, 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 have been quick to react. Many have announced the ending of certain types of DEI initiative, including 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 in order to stay out of the spotlight of federal agencies scanning for employers to name or investigate. 

Shifts in the US often impact employers in the UK, both directly (because they are in scope of federal contracting) or indirectly as US practice influences practice here.  In this article, building on our previous comments, we’ll explore what this impact could be, why key initiatives must stay in place and what companies can be doing now.   

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 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 our British 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 Great Britain.

In Great Britain, we have the highly restricted concept of “positive action” (see our inbrief guide here). It is crucial not to equate this with affirmative action. In fact, in its 2023 guidance on positive action in the workplace,  the UK government explicitly warned British employers that “when considering taking positive action, you should be careful not to use American sources about affirmative action, as they do not set out the legal position in this country”.

(Note that the position is a little more complicated in Northern Ireland, where “affirmative action” is permitted.  However, this is a different concept than in the US. In Northern Ireland, it refers 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 - such as removing barriers to equal opportunities, encouraging more applications and so on. 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. It will take time for the US position to be settled, although we may gain a clearer picture once the “most egregious practitioners” and potential compliance investigations (discussed above) are identified.

Even if US legal boundaries are re-drawn, however, this does not necessarily impact UK 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 UK position in any event.  

DEI training in the UK

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 a UK perspective, taking steps to roll back training programmes could open companies up to legal risk. 

The UK Equality and Human Rights Commission (as well as the Equality Commission for Northern Ireland) clearly recommends that employers provide regular training to employees on their equality policies. This is in their Codes of Practice, which tribunals are required to consider when deciding if an employer has discharged the burden of proving that it did not discriminate against an employee who claims discrimination (the burden of proof is on the employer here once the employee has established facts which, absent any other explanation, could evidence discrimination).

Training is especially important in relation to sexual harassment law. In Great Britain, employers have a positive legal duty to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. This will nearly always include giving staff anti-harassment training. In fact, 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. 

Trans protection in the UK

In the UK, trans people are explicitly protected from discrimination by legislation. This differs from 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. Protection for trans people in the UK was once also based on an expansive interpretation of our law against sex discrimination, but this is no longer the case. In Great Britain, trans protection is enshrined in the Equality Act through the protected characteristic of “gender reassignment” (in Northern Ireland separate legislation is in place).  

DEI reporting in the UK

Some employers will continue to be legally required to carry out certain DEI reporting in Great Britain and Northern Ireland. For example, certain listed businesses are and will continue to be required to report on the diversity of their board and senior managers. In Northern Ireland, in-scope employers will continue to be obliged to report on the community background of their staff.  

Trends in the UK and US 

We already see increasing conflict and divisions within the workforce as a growing trend in the UK, 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 UK employees to share their views more openly.

UK 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, the UK often adopts trends and language from the US workplace - 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 UK. 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 the UK is not the same as in the US. For one thing, we have a new Labour government which has come into power on a promise of enacting more anti-discrimination legislation and expanding the scope of pay gap reporting beyond gender to include ethnicity and disability. For another, surveys consistently show the importance of promoting DEI for attracting new recruits, especially Gen Z and Millennials, and on this issue there also seems to be a difference between the UK and US. For example, this Purpose Pulse survey from last year found that, in the UK, 68% of Gen Z and Millennials say it’s important when picking a job that the company promotes diversity in its leadership, compared to 57% in the US. More people in the UK also believe it’s important that a company has dedicated career programmes to help people from underrepresented groups (63% vs 52% in the US).

What UK employers can be doing now

Please contact us if you would like our advice on your DEI initiatives and for further support with the issues raised in this article.

With our thanks to Shawn Fabian from Sheppard Mullin for his comments on the US position.

This article was originally published on 27 January, 2025.