Since his election the US president has pursued a narrative attacking DEI policies, often known as EDI in the UK. ‘Equity’ has become a prerogative term with the president signing an executive order on his first day in office terminating ‘equity-related’ grants or contracts. This ‘prompted’ global companies such as Meta, Amazon, McDonald’s and Ford to terminate their DEI practices. The US administration is committed to ending discrimination through DEI policies, claiming those operating ‘blatant race-based and sex-based discrimination’, including quotas, violate public trust.
The focus on law firms
In the last few weeks, Trump has turned his attention to ‘Big Law’, issuing executive orders directed at three law firms, Covington & Burling, Perkins Coie and Paul, Weiss, Rifkind, Wharton & Garrison LLP (known as Paul Weiss), restricting access to federal contracts and removing security passes for government buildings. This was not random selection. The orders are widely seen as retaliation against the firms for acting for clients who are political opponents or involved in action against the president. The divergent response shows ‘a major divide’ in the legal industry with two firms challenging the executive orders in court, but Paul Weiss striking a deal to end DEI practices to secure the withdrawal of the order. Further influence has been reported with some law firms amending or renaming their DEI pages and removing pronouns from emails.
A further 20 ‘global law firms’ have also been targeted over DEI-related employment practices, including London names A&O Shearman, Freshfields and Hogan Lovells. On 17 March, the US Equal Employment Opportunity Commission wrote an 11-page letter to each of the firms requesting ‘significant information’ about their DEI practices, including personal data on employees and clients. There was a chorus of condemnation with associates from these firms among the almost 500 signatories to an open letter. The threat to the rule of law by these developments has been widely commented on. As highlighted in Phase 6 of the Post Office Inquiry, lawyers are independent officers of the court, and are even regarded as ‘ministers of justice’, who need to resist attempts to align them to their client interests.
Trump’s moves against ‘Big Law’ and global law firms raises important issues for City lawyers and concerns of a wider impact. Freshfields considers the shift in US policy demonstrates a need for ‘nimbleness’ as the Trump administration seeks to effect fundamental change. It is unclear how far the shift in US policy prohibiting the use of DEI policies could impact positive action initiatives in the UK.
The situation in the UK
There is a clear contrast between the US presidency and the Labour government elected with a manifesto commitment to introduce new employment protections, including an Employment Rights Bill. The legal culture in the UK is different to the US with the Equality Act 2010 allowing positive action within a narrow legal framework, provided it is a proportionate way of enabling or encouraging people from a disadvantaged or under-represented group to overcome or minimise the disadvantages of that group. This allows practices such as targeted advertising, networking opportunities and exclusive training. The Act also imposes a public sector equality duty to eliminate discrimination and advance equal opportunities.
Despite this, US developments have exposed the ‘fragility’ of commitments to EDI. Reported comments by the Health Secretary, Wes Streeting, in February on ‘misguided’ NHS diversity practices, such as ‘anti-whiteness’, are concerning. In March, the Financial Conduct Authority and Prudential Regulation Authority abandoned joint plans to impose stricter DEI rules in the financial services sector to avoid duplication and unnecessary costs.
At the University of East London our Positive Action Research Working Group considers positive action to be valuable in driving equality, diversity and inclusion in employment, and is working with the university’s Office for Institutional Equity to actively champion EDI, positive action and inclusive practices. Recent US restrictions on DEI are alarming and close attention must be given to the shifting discourse. The importance of this debate and associated action cannot be underestimated.
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