Within days of taking office in his second term, President Trump issued two Executive Orders (EOs): EO 14151 ‘Ending Radical and Wasteful Government DEI Programs and Preferencing’ and EO 14173 ‘Ending Illegal Discrimination and Restoring Merit-Based Opportunity’. The former requires the dismantling of various diversity, equity and inclusion (DEI) initiatives and departments within federal government. The latter extends beyond federal government agencies, requiring private sector companies to comply or face fines and sanctions.

Federal agencies have already commenced investigations into private companies said to be in breach. The Department of Justice Civil Rights Division is developing an enforcement plan and is considering both civil and criminal sanctions. The Equal Employment Opportunity Commission has sent information requests to major law firms about their DEI practices. Then, on 23 April 2025, a further EO ‘Restoring Equality of Opportunity and Meritocracy’ mandated a government-wide rollback of disparate impact liability, which is akin to the concept of indirect discrimination in GB.

Indirect discrimination is the concept that a rule or practice that appears neutral can have discriminatory effects. For example, a minimum 6ft height requirement might be indirectly discriminatory against women (who are less likely to meet the height requirement) even though the rule does not directly target women. The discrimination can be justified if the role requires it but otherwise will be unlawful. These changes in US policy and law have had a chilling effect on DEI initiatives in the US private sector, since there is great uncertainty as to what will be deemed unlawful discrimination and there is an understandable fear of sanctions, fines and loss of government contracts (for those private companies that contract with federal government).

The publicity surrounding Trump’s attack on DEI has unnerved employers in Great Britain (GB), leaving some wondering whether they should reduce their DEI initiatives, especially since companies such as Meta and Ford have widely publicised their actions doing so. In this article, I 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. (Note: GB-based companies that contract with US federal government will be expected to comply or may lose their contracts, even if based outside the US.)

The GB v US context

US equality legislation is fundamentally different from that which applies in GB. The Equality Act 2010 is the main source of equality legislation in GB and derives largely from European Directives and some domestic borne rights. It has no application in the US and is entirely unaffected by the changes in the US.

One of the more striking differences between the two legal regimes is the way in which the US approached affirmative action prior to the latest EOs. Affirmative action previously allowed employers in the US to take ‘protected characteristics’ (e.g. race, sex) into account in hiring and employment decisions, provided the measure was: temporary and flexible (not permanent); there was a manifest imbalance in traditionally segregated roles; the program included race or sex as just one selection criterion (not the sole criterion); there was no absolute ‘quota’; and the rights of non-minority employees were not unfairly harmed.

For example, if women or minorities were severely underrepresented, the employer could have regard to race or gender as a ‘plus factor’ among qualified candidates, in addition to merit-based factors. Following EO 14173, the Office of Personnel Management (OPM) has stated that in respect of government agencies, DEI initiatives are unlawful if they take ‘action motivated, in whole or in part, by protected characteristics’. For companies contracting with federal government and the government agencies themselves, it is therefore no longer lawful to consider race or sex at all when making employment decisions. Doing so would breach EO 14173 and expose the employer to sanctions or debarment. While this does not directly apply to private sector companies in the US, it sends a strong signal that any decision-making that includes race or sex will be treated as unlawful ‘discrimination’ by federal agencies when they are investigating private companies’ compliance with the EO. As such, it seems that affirmative action initiatives are doomed in the US, or at the very least, that continuing to apply them would be risky in the private sector (and unlawful in the public sector).

In GB, the Equality Act 2010 prevents less favourable treatment of people based on specific protected characteristics (race, sex, disability, age etc). The prohibition of less favourable treatment includes, of course, a correlative ban on more favourable treatment of 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 mandated under the Equality Act 2010. This has been the position in GB for decades.

The narrow exception under the Equality Act 2010 allows for a limited form of positive action in GB. The first, is the ‘tie-break’ provision where, if two candidates are equal in merit, an employer can choose, for instance, the minority candidate, if representation in the workforce is disproportionately low or if that minority suffers 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.

In Furlong v The Chief Constable of Cheshire Police ET/2405577/18 (unreported), the employer misconstrued this exception and was held to have discriminated against a white candidate. In its recruitment exercise, the employer applied pure merit-based criteria for the first stages, but in a later interview stage assessed candidates’ answers using a simple pass/fail metric, deeming all successful candidates who passed that stage ‘equal’, despite the qualitative differences between their answers. The employer then applied ‘positive action’ by giving priority to minority protected characteristics to fill the vacancies. An Employment Tribunal found that it was a fallacy to consider all who passed as being ‘equal’ and that the white candidate had been discriminated against.

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 or to address the different needs of people with that characteristic. It is not positive action in respect of selection, rather it aims to provide equality of opportunity based on protected characteristics rather than equality of outcome (which would be forbidden). The action must be ‘a proportionate means of achieving a legitimate aim’ and the measure cannot itself amount to discrimination of the group or groups that do not benefit. A real-life example of an employer getting it wrong is Turner-Robson and others v Chief Constable of Thames Valley ET/3314825/2022; ET/3315403/2022; ET/3301897/2023 (unreported) where an employment tribunal held that it was unlawful discrimination to move a minority ethnic Sergeant into a Detective Inspector role without undertaking any competitive exercise. The employer’s actions went beyond mere encouragement of the underrepresented minority and disadvantaged three white officers (the claimants) who were denied the opportunity to even apply for the role.

These examples show how restrictive GB law is in respect of positive action, suggesting that the current US approach to affirmative action (post the EOs) is in some ways closer to the position we have had in GB for decades. The exception in GB is so narrow that it will rarely apply, and in that sense, is closer to the new position in the US. However, the GB approach still differs, since there is uncertainty in the US as to whether private companies are ever permitted to use any affirmative action (even narrowly drawn) or whether it is effectively unlawful, whereas in GB, the statute sets out lawful ways to use positive action (it is just very narrow).

Another key difference between GB and US equality law is in respect of indirect discrimination. Indirect discrimination occurs where an apparently neutral rule or policy has a disproportionate adverse effect on a protected group, such as in the height requirement example above. In the US there is a similar concept known as disparate impact liability. Under both GB and US law, the employer can defend liability by showing that the requirement is justified for the role in question. For example, a requirement to speak fluent French would likely be justified for a role as a French teacher, but not for a forklift truck driver. Under US law, Trump’s April 2025 EO decimated the legal enforcement mechanisms for this type of discrimination. The EO ‘seek[s] to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.’ It mandates that all federal agencies must reduce enforcement of laws and regulations that include disparate impact liability. In GB, the right to bring claims for indirect discrimination remains strong and is unaffected by the EO.

These sorts of differences between the GB and US systems should reassure GB employers that blindly following the US approach of peeling back DEI initiatives might not be apt in the GB context.

Beware of increased legal risk

GB equality law has not changed simply because US law and policy has changed. Indeed, revoking DEI initiatives in GB merely because that is the approach in the US is nonsensical and could lead to increased risk of legal liabilities here in GB.

Further, 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. Therefore for most GB companies, the EOs have no direct impact and the changes to US law do not otherwise affect them. Indeed, I consider that it could expose GB-based companies to an increased risk of claims if they do roll back legitimate DEI initiatives. This is for several reasons:

  1. It might be easier for claimants 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 can in some cases protect employers from liability for acts of discrimination committed by one employee against another employee) is already difficult to establish. Without DEI policies and initiatives, it is even less likely to succeed.
  3. GB employers are currently under a duty to take proactive ‘reasonable steps’ to prevent sexual harassment. If the Employment Rights Bill is enacted in its current form, these duties will likely extend to all protected characteristics and include liability for harassment caused by third parties (including people other than the employer and its employees) unless the employer can show it took ‘all reasonable steps’ to prevent it. Employers without appropriate DEI policies and training initiatives would likely 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, potentially making it harder for employers to defend claims.

Not all DEI initiatives are created equal

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 one underrepresented group, they inadvertently disadvantage others thereby discriminating against them, as the above cases of Furlong and Turner-Robson demonstrate. As in any sector, there are rogue DEI trainers that can mis-advise employers and lead them into adopting policies that are not compliant with GB equality law. This is a complex area and certain topics are highly divisive and cause particular difficulty for employers, such as the balance between the rights of those with gender critical beliefs and the rights of trans people. There is no substitute for bespoke expert advice in respect of DEI initiatives and policies, to ensure that any policies are compliant.