Within days of taking office, President Trump wasted no time in signing three executive orders with a view to rolling back equality, diversity and inclusion (EDI) initiatives and dismantling what he refers to as “illegal and immoral discrimination programmes”.
The executive orders include “ending radical and wasteful government EDI programmes and preferencing”, which aims to abolish EDI initiatives from federal government, as well as an order to “end illegal discrimination and restore merit-based opportunity”, with the aim of encouraging the US private sector to end “illegal EDI discrimination” and preferences, including “affirmative action” and “diversity hires”. A further order means that, within the government, only two sexes will be recognised.
These moves have been justified on the grounds of a return to merit-based opportunities and cost cutting; however, the orders have been criticised for undermining the very cause for EDI initiatives champion. This has sparked conversation about the impact such moves will have on UK employers and whether a ripple effect will be felt across the pond.
Affirmative action vs positive action
In America, ‘affirmative action’ has long since been a cornerstone of EDI initiatives, enabling US employers to take positive steps including EDI initiatives to overcome the effects of discrimination. This has led to US organisations adopting practices short of selecting or promoting candidates from underrepresented groups. Trump’s perceived view is that employers have “adopted and actively used dangerous, demeaning and immoral race and sex-based preferences” and considers the rolling back of affirmative action will “promote individual initiative, excellence and hard work”.
In contrast to the position in the US, positive discrimination is not permitted under the UK’s Equality Act 2010, except in limited circumstances, including the context of employee disability or pregnancy/birth. The UK has a narrow concept of ‘positive action’, which enables employers to take proportionate action with the aim of enabling or encouraging those with a protected characteristic (such as sex or race) to overcome certain barriers and to improve representation in the workforce and effectively level the playing field.
It is yet to be seen what effects the rolling back of affirmative action will have on EDI initiatives in the US; however, given the approach to positive action in the UK is much more restrictive than the concept of affirmative action, it is unlikely to significantly alter EDI practices in the UK.
Gender board quotas
In the US, there has historically not been any federal mandates for gender quotas on boards and it seems likely that the introduction of the executive orders will further discourage the use of any such quotas. Although the UK does not have mandatory gender quotas on boards (other than for listed companies), businesses are encouraged to continue to improve gender diversity through self regulation and public reporting. The government-backed FTSE Women Leaders Review shows that UK businesses are on track to meet the voluntary target of 40 per cent female representation on FTSE 350 boards by the end of 2025, which demonstrates the continued commitment of UK businesses to promoting gender diversity on boards for the time being.
Gender identity
Trump has directed federal agencies to only recognise two sexes: male and female, as defined biologically. Several large businesses, such as McDonald’s and Amazon, are reportedly already taking steps to roll back their EDI measures and transgender protections, and it is likely others will follow suit. The rolling back of such protections could have far-reaching implications for those who do not identify as either male or female. In contrast, the UK’s Equality Act specifically recognises gender identity as a protected characteristic and prohibits discrimination on this basis. Given that protection for transgender employees is enshrined in statute, it is highly unlikely that the executive order in the US will impact the protections for UK-based transgender employees.
Trump’s executive orders have the potential to challenge UK employers and boards to rethink their EDI initiatives, particularly for businesses with US parent companies or significant US workforces. However, while attitudes towards EDI in the workplace may be flexing, it is important to remember that the legal and cultural landscape in the UK diverges significantly from that of the US. The UK government has made firm commitments to not only maintain, but to enhance, the protection of EDI in the newly introduced employment rights bill. It will therefore be important for UK businesses to continue to comply with UK legislation and work on establishing a work environment that is inclusive for all.
This article was first published in People Management and can be accessed here.
Rachel Collins