Feb 2025 – President Trump’s DEI orders: what do they mean for UK employers?
President Trump has issued orders demanding the rolling back of DEI initiatives within the federal government, federal contractors and the private sector. In this article, we explain how US law differs from UK law on DEI, why key initiatives must stay in place in the UK and what UK companies can be doing now.
Since Trump came to power, he has signed several Executive Orders, relating 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 which opposes the concept of gender identity.
The first order aims to wipe away all DEI initiatives from federal government. The second, aimed at the private sector, demands the ending of “illegal” practices. Meaning not all DEI initiatives, but only those that overstep the boundaries of federal US law. The third order directs the federal government to recognise only two sexes, male and female, as defined in the order in biological terms.
US companies will be thinking carefully about their current approach to DEI, even before Trump’s inauguration we started to see many large US organisations rolling back aspects of their DEI initiatives.
Affirmative action
In the employment context, employers in the US have a long-standing practice of adopting various affirmative action plans and DEI initiatives, but stopped short of making offers of employment based on race or other protected classes. Many of these plans were (until Trump’s re-election) mandated by the federal government.
When looked at from our British perspective, we have sometimes seen affirmative action practices go further than would be allowed here. For example, using an interview quota for ethnic minority candidates is relatively common in the US, whereas this type of practice is legally risky in Great Britain.
In Great Britain, we have the highly restricted concept of “positive 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.)
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. However, even if those US legal boundaries are re-drawn, this does not need to 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’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 (EHRC) (as well as the Equality Commission for Northern Ireland (ECNI)) 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 discriminated against an employee.
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, unlike in the US. 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. A perceived backlash against DEI initiatives in the US could encourage UK employees to share their controversial or divisive views more openly.
UK employers should not assume that everyone in their workforce agrees with all of their DEI initiatives. However, we 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”.
It is also important to understand that the legal, cultural and political situation in the UK is not the same as in the US. 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.
Furthermore, 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.
What UK employers can be doing now
- Be prepared and ready to explain your DEI initiatives
- Keep offering DEI training to your workforce
- Support management in resolving workplace conflicts with a focus on inclusion and respect
- Ensure compliance with obligations under anti-discrimination law and relevant codes of practice published by the EHRC or the ECNI.
With our thanks to Shawn Fabian from Sheppard Mullin for his comments on the US position.
If you have any specific questions you would like advice on or if you would like information about what is discussed in this article, then please contact: Abi.Frederick@lewissilkin.com of Lewis Silkin LLP.