New US enforcement plan raises questions for UK employers

Reuters is reporting that the US Equal Employment Opportunity Commission has adopted a new National Enforcement Plan which changes the agency’s enforcement priorities and places increased scrutiny on diversity, equity and inclusion initiatives. The move reflects the Trump administration’s broader approach to workplace diversity and has prompted many multinational employers to review how their EDI programmes operate across different jurisdictions. So, as enforcement expectations shift in the US, what should UK employers do? Should they follow the direction of travel in the US, or could doing so create new legal and reputational risks here? We’ll ask a diversity expert that question.

The Commission’s new enforcement plan marks a significant change in how the agency intends to approach workplace discrimination over the coming years. While the underlying US anti-discrimination legislation has not fundamentally changed, the priorities for investigation and enforcement have, creating fresh uncertainty for employers with operations on both sides of the Atlantic.

That creates a practical challenge for multinational organisations. While businesses with a US presence will inevitably want to review policies and programmes in light of changing enforcement priorities, employers in the UK continue to operate within a different legal and regulatory framework. Equality law remains unchanged, regulators continue to expect employers to take discrimination and harassment seriously, and organisations may still need to demonstrate that they have taken appropriate preventative steps should claims arise.

For HR professionals, the question is therefore not simply whether EDI programmes should change, but which elements are legally important, which remain appropriate in different jurisdictions, and how employers can respond to developments in the United States without inadvertently increasing legal or reputational risk elsewhere.

So how should employers strike that balance? Kate Dodd heads up Pinsent Masons’ D&I Consultancy and earlier she joined me by video link. I started by asking her what risks UK employers face if they respond to changing US developments by cutting back on EDI initiatives.

Kate Dodd: “So the risk is really a twofold risk. One is in relation to claims – so it's a litigation risk – and then the other is in relation to reputation. So taking each of those in turn. There is an increased risk of claims for employers who cut back on the provisions that they make, particularly in relation to training. There is all sorts of mandatory training that is required in the UK and across Europe, and those types of things haven't changed, and they're not going to change, and it's very important for an employer who thinks of that type of training as being voluntary, or something that they can opt in or out of, to look at that very carefully and to conduct an audit, to say, well, hold on, what of this is nice to have and what of this is mandatory? So it's there, it's required in order for us to meet our obligations as a reasonable employer. So for example, talking to employees about harassment, talking to employees about discrimination, bullying, etcetera, because there is a risk there that if that type of training, or if that kind of upskilling, is lost then there will be higher claims and we've already seen training in the spotlight. We've already seen a real direction of travel in the employment tribunals that say that tick box training, or training that is not regularly refreshed, is not going to be sufficient to meet the reasonable steps defence and, therefore, for an employer, or for an HR professional, who is being asked to change the training, or to pull away from what they have been doing, they need to go through that training really carefully to work out the essential parts to avoid legal liability versus the stuff that could be seen as more nice to have. Then secondly, as I said, it's reputational. There has been a real pushback in the US against businesses that are seen to be rolling over too readily, and that continues also to businesses who are seen to be moving too quickly because of their US presence and moving too widely. So I think there's certainly an understanding that businesses need to do what they need to do in order to continue to operate successfully in the US, but question whether or not that does need to extend into the UK, for example in the way that some businesses have done so. So not just, of course, in relation to the employees there, but also in relation to other stakeholders. So those two are the kind of the key things there. It's going to be the legal and then also the cultural side of things.”

Kate Dodd speaking to me earlier. f this is something which affects your business and you would like help then please do contact Kate – her details on the screen for you.

- Link to Reuters article: ‘US worker rights agency nixes Biden-era enforcement plan, will focus on DEI’