The US Supreme Court has ruled that race-based college admission programmes are unlawful. As concerns grow that workplace diversity, equity and inclusion (DEI) initiatives could come under similar challenges, we look at the position for positive action programmes in the UK.

A landmark US Supreme Court ruling has declared that race-based affirmative action programmes in US colleges fall foul of the US constitution. These programmes had essentially made race into a potential criterion for college admission, in a well-intentioned effort to increase diversity, equity and inclusion. The Supreme Court had backed affirmative action programmes in previous decisions but the practice had come under increasing challenge from Republican legal activists. In this latest ruling, the Supreme Court has divided along ideological lines to rule (by a majority) that using race as a factor in admissions is unconstitutional, toppling decades of established admissions practices across many educational institutions in the US and delivering a long-fought-for victory for conversative Americans who have opposed affirmative action programmes.

The US Equal Opportunities Commission was quick to point out that the ruling does not directly impact workplace diversity initiatives. Those are governed by a different US legal regime. The ruling has led to concerns, however, that US workplace diversity initiatives could be impacted indirectly. This is for two main reasons. First, when companies look to hire graduates in future, diversity in the candidate pool may start to drop. Second, there is a growing nervousness that workplace diversity initiatives will become the next target for ideological legal challenge. Workplace anti-racism training is already the subject of controversy in the US. The conservative legal activist behind the latest Supreme Court ruling has indicated that workplace DEI initiatives should come under greater attention in future, leading to concerns that the fear of ideologically-driven litigation against any kind of race-conscious initiative might have a chilling effect on workplace DEI programmes.

In the UK, we have the concept of ‘positive action’ rather than the US concept of affirmative action. As recently as April this year, the UK government issued guidance emphasising that these two concepts should not be equated. The legal regime in the UK is already restrictive and, as such, UK employers already need to be careful to avoid overstepping the mark. Diversity initiatives can tip into unlawful positive discrimination if sufficient guardrails are not put in place (as illustrated very recently by this inquiry into the RAF).

Although UK employers need to be mindful of the litigation risk, we have not seen the same kind of backlash against race-based diversity initiatives as the US. We have seen unhelpful references to culture wars and ‘cancel culture’ but, on the whole, UK employers generally remain under pressure from employees, investors and other stakeholders to quicken the pace of change. Slow progress in diversity statistics is often cited as evidence against employers, leaving them keen to move more quickly to improve diversity, equity and inclusion. As we have written about before, ultimately, UK law does not allow candidates from underrepresented groups to be preferred over other better qualified candidates and recruitment and selection outcomes need to be merit-based (except in the narrow and uncertain ‘tie-breaker situation’). This has led to a focus on changing the diversity profile within more junior or entry-level positions, where it may be easier to influence the talent pool, but with the net result that the pace of change has felt frustratingly slow for many.

Organisations ultimately want to do what they see as the right thing and are frequently prepared to run the litigation risks involved in doing so. Outside the UK and US, several countries are taking bolder approaches, for example by introducing quotas and targets for women on boards, with positive outcomes for improving diversity. We’ve advocated for a more permissive legal regime in the UK, although the current government seem unlikely to take that forward. Without bold and clear legislation, however, many UK employers are likely to continue to want to go further than the law allows – perhaps in common with the position that US educational institutions now find themselves in.

*Lewis Silkin