The Memo: UK businesses could face legal action if they backpedal on DEI efforts

If you’ve had even one eye on the news since Donald Trump took office for the second time, you’ll have seen that the president has issued a variety of controversial executive orders. Two of these were crackdowns on diversity, equity and inclusion (DEI) efforts in the federal government. One overturns the previous administration’s efforts to increase DEI programmes in the federal government, while the other addresses a number of previous orders, banning several DEI measures across the government. The second of these goes so far back as to overturn an executive order originally signed by Lyndon B. Johnson during the civil rights era,which requires federal contractors to adopt equal opportunity measures.  

The language used in Trump’s orders was relatively broad, so the exact consequences for employers in the US remains unclear. The legal profession has, however, been significantly impacted by the orders, with a group of 20 firms receiving a letter from the Equal Employment Opportunity Commission demanding information about their DEI policies.In doing so, the powers that be could determine whether law firms’ practices or policies are in any way preferential towards underrepresented groups, which would be classed as unfair treatment amounting to discrimination. 

Whilst law firms are currently fighting back against Trump’s orders, there has been some confusion over how changing practices could affect law firms operating in the UK. Many firms have offices in both countries, and some have begun to pull back their UK DEI efforts due to the current political climate on the other side of the pond. However, the Employment Law Association has warned UK businesses that reducing their DEI efforts could actually put them at a greater risk of legal action. The UK’s employment laws are different from the US, and businesses are legally required to do all they can to prevent discrimination. However, specifically using any characteristics protected under the Equality Act 2010 as selection criteria when hiring or promoting is not permitted. 

So, if a company, law firm or otherwise, were to withdraw their DEI efforts in the UK, they could potentially face a discrimination lawsuit. Whether this will be an issue, however, is yet to be seen, though it will be yet another consideration for law firms when making decisions about DEI policies and practices.