DEI has been a focus of both criticism and praise in recent years. Especially following the George Floyd protests in 2020, such schemes have experienced an explosion in popularity, so what is it, and what does U.K. law say?
What is DEI?
DEI, also known as D&I, has its origins in the civil rights movements in the United States. It aims to promote the hiring, advancement and experience of underrepresented groups in the workplace. Most sources agree that the acr0nym D.E.I. stands for Diversity, Equity and Inclusion, meaning the following:
- Diversity refers to the demographics of the organisations. Which groups are represented in the organisation, and at what levels? Many groups can be considered, and often the protected groups of the 2010 Equality act are used: Race, Age, Sex, Sexual Orientation, Religion, Disability and more.
- An historically disadvantaged group may require extra help to achieve equal outcomes as a privileged group. Equity refers to this need to provide special opportunities to these demographics. This is different from equality, which would treat all groups exactly the same, and disregard outcome.
- Inclusion refers to creating a feeling of belonging for everyone. This is important so that especially minority groups do not feel they are hiding or suppressing part of their identity at work.
Proponents of DEI argue that applying these principles is both a moral imperative and beneficial to businesses. They often point to studies that show that diverse workforces represent more opinions and reduce groupthink, improving performance. For example, a McKinsey Report from 2020 found that companies in the top quartile for gender diversity were 25% more likely to outperform the market than those in the bottom quartile. Similarly, companies in the top quartile for ethnic diversity were 36% more likely to outperform the market than those in the bottom quartile.
DEI Usage
Many companies use DEI strategies to get these benefits for their business. In fact, according to the CIPD inclusion at work report 2022, half of U.K. employers have a specific DEI strategy. The most common demographics considered are mental health/disability, race/ethnicity and gender. Furthermore, the most common strategies used by employers are often the simplest to implement:
- Reviewing job descriptions to accurately reflect the requirements of the job
- Making reasonable adjustments where possible throughout the recruitment process
- Using structured interviews (for example, standardised questions)
Other strategies that have been implemented include:
- Giving underrepresented groups guidance on the recruitment process
- Targeted advertising of positions to certain groups
- Setting diversity targets
Legal Basis of DEI
Employers should be wary of ensuring they conform to U.K. equality legislation when applying some DEI strategies. Whilst positive action is legal, positive discrimination is not. Furthermore, affirmative action, first introduced in the United States, does not apply in the U.K..
Positive action requires a well-documented, evidence based approach to promote an underrepresented group in a proportionate way. There is no legal requirement to apply positive action, but applying the process incorrectly could be illegal under the 2010 Equality Act. For example, employers should be careful not to set quotas, though targets are allowed.
The tie-breaker principle also allows employers to favourably choose individuals from under-represented or disadvantaged backgrounds in recruitment, if the employer has established that both applicants are of ‘equal merit’. Employers should set criteria, from which to assess the merits of each candidate. The tie-breaker principle is then best applied at the end of the recruitment process, when employers can truly judge that both candidates are of equal merit. For example, in Furlong v Chief Constable of Cheshire Police, judges found discrimination had occurred when Furlong was ruled out at an early recruitment stage simply for being a straight white man.
Exceptions to these rules are made for disability. It is lawful for an employer to treat a disabled person more favourably than a non-disabled person without needing to rely on positive action. The reverse is not legal. This is known as the asymmetrical approach in the 2010 Equality Act, and reflects the burden of having a disability.
Criticism
As DEI has become more popular, it has also attracted more critics, in particular relating to its implementation regarding race. In March the government released its Report on the Inclusion at Work, which heavily criticised many of the approaches in DEI.
Firstly, the outcome of DEI schemes is not monitored in over 25% of cases, and where it is, it is often by simple internal staff surveys. This makes it hard to discern if schemes have actually worked, and if such schemes provide value for money. Additionally, there is often confusion within management whether the goal is equality (i.e. equal treatment) or equity (i.e. equal outcome). This leads to confusion about how to treat such schemes and track progress.
Another criticism is that often all non-white ethnic groups are often lumped together, in the past under the term BAME. This obscures the fact that some groups are achieving above average educational and career outcomes. For example, the Commission on Race and Ethnic Disparities 2022 report highlights that most minority ethnic groups, as identified on the UK census, have higher university admission rates than white students. Groups are also not homogeneous, for example there is a large gap in educational outcomes between black african pupils and black caribbean pupils. Simply monitoring this statistic therefore can give the false impression of progress, when already successful minority groups are hired or promoted.
Lastly, some schemes, though applied with good intentions, have been found to breach equality legislation. The report mentions the case of diversity targets applied at the Royal Air Force, RAF. Aggressive pursuit of diversity targets led to 31 white men being held back during pilot training, which a Ministry of Defence report found to be illegal.
The Future
The future of DEI is unclear in the U.K.. Following its report, the current government has instructed whitehall to scrap all jobs that relate solely to DEI. Additionally, hiring external consultants for this will also be banned. Nonetheless, there remains a desire in the workforce to promote diversity. 66% of U.K. employees rate diversity as important to them and this is highest amongst the youngest employees, Generation Z.