Best Practices for Maintaining DEI Programs in the US

Amidst the crowded news cycles of late, UK companies doing business in the US may have lost sight of the Trump administration’s Diversity Equity and Inclusion (DEI) related executive orders from early 2025. The relative absence of media attention on DEI should not be mistaken for a retreat by the administration from its DEI priorities.

What does the latest US DEI guidance say?

As a reminder, in January 2025, President Trump issued several executive orders addressing DEI programs in the context of US employment. Broadly, these orders provided as follows:

• directed that federal government offices immediately terminate all DEI positions and programs;
• rescinded executive orders from prior presidents concerning equal employment opportunity including one from the 1960s under which federal contractors had been required to create affirmative action plans to review and promote equal opportunity within the workforce, which will no longer be required;
• directed that new federal grants/contracts require certification by grantees/contractors that they do not operate any DEI programs that violate anti-discrimination laws; and
• directed federal agencies to prepare enforcement plans to uncover and eliminate “illegal” DEI in the private sector, including to identify up to 9 potential investigations of large employers’ DEI programs.

Except under extremely limited circumstances, it has long been unlawful in the US to make employment decisions, such as hiring, promotion, or firing, based on protected characteristics like race or gender, and the executive orders do not change that underlying legal principle. Nor do the executive orders declare that all private sector DEI programs are unlawful. The question, therefore, is which aspects of a DEI program might be deemed to be “illegal” discrimination under these orders.

The federal Equal Employment Opportunity Commission (EEOC) has tried to answer this question, issuing guidance suggesting ways in which DEI programs can avoid violating existing anti-discrimination laws as follows:

• Employee Resource Groups (ERGs) or affinity groups should not limit their membership or participation only to employees with specific protected characteristics; nor should employers segregate or separate employees on such bases for example during training;
• Employers should not create or use quotas or hiring slates in recruitment to promote one candidate or employee over another because of their protected characteristic;
• employers should not administer any DEI or discrimination/harassment prevention training in a way that might create a hostile work environment for those who may not agree with the content of the training, such as due to their religious views;
• employers should not offer tangible benefits, such as access to internship, mentoring, sponsorship, networking, or leadership training, only to employees with protected characteristics;
• employment decisions that are based, even in small part, on an employee’s protected characteristic cannot be defended or justified by reference to a general desire to promote diversity.

Neither the Trump administration nor the EEOC is the final or sole arbiter of what amounts to “illegal” DEI under US law. Those decisions are typically left to the courts, and it will take some time for court decisions to emerge. Until then, UK employers with US based employees should review their US DEI policies, training, and programs to identify elements that may run up again the administration’s guidance. This is particularly important for federal contractors or grantees who must now certify they do not engage in illegal DEI and risk liability for making a false claim to the government if they are not compliant.

Does this guidance apply to UK operations?

Here in the UK, President Trump’s executive orders have limited official impact. Although it was widely reported that some US embassies sent letters to European companies with federal contracts requiring that they certify compliance with US anti-discrimination laws, the embassies later clarified that US law has very limited overseas application, only typically protecting US citizens employed by companies controlled by a US entity.

Rather, UK employers must comply first and foremost with UK law, which provides its own rules concerning an employer’s obligation to prevent discrimination and harassment and provides very limited scope for employers to take “positive action” to put underrepresented or disadvantaged groups into a position of equal opportunity. For more guidance on UK laws, including changes related to the obligation to prevent harassment and with respect to transgender employees, please read our prior blogs HERE and HERE.

Unofficially, however, US corporate, political, and social culture inevitably reaches well beyond its borders, and the retreat from DEI as a US corporate value is arguably already reflected at some level in the UK workforce. Employers should not assume uniformity of viewpoint among their employees.

What should employers do amid this changing DEI landscape?

There is a myriad of reasons DEI efforts gained strength in the past decade, including because consumers and employees demanded them to ensure representation of a diversity of views and perspectives. In addition, employers must continue to protect all employees from discrimination and harassment and should establish and maintain a safe culture that allows employees to effectively work towards commercial goals. Abandoning all DEI efforts might, accordingly, risk failing to meet those critical obligations and objectives.

At the same time, employers must be mindful of changing legal guidance and shifting cultural priorities and should be prepared to be nimble and responsive to employee concerns. Employers should review their existing policies and programs for compliance in the country in which they apply, remembering policies in the US will likely differ from those in the UK, and should continue to actively listen to employees and their concerns so they can be promptly and effectively addressed.