Diversity Practices Often Counterproductive or Unlawful, Says Report

Undated file photo of Business and Trade Secretary Kemi Badenoch. Liam McBurney/PA

Diversity initiatives in organisations are rarely based on solid evidence and can be counterproductive or even unlawful, according to a government-commissioned report published on Wednesday.

The independent Inclusion at Work Panel was asked to examine diversity and inclusion practices in public and private organisations.

It said a framework is needed to promote meaningful diversity instead of visible diversity, and recommended the equality watchdog explain and clarify the legal status for employers in relation to diversity and inclusion.

Equalities minister Kemi Badenoch, who commissioned the report, wrote in The Telegraph that it’s “concerning how few employers are using evidence when making decisions.”

Anna Loutfi, barrister and head of legal at The Bad Law Project, told The Epoch Times that there’s a “fundamental misunderstanding” of the Equality Act because of cultural shifts.

According to the report, the panel’s six-month investigation found that organisations “want to ‘do the right thing,’” but reported barriers including a lack of data, confidence, and time to test new ideas, or have “good faith” discussions with staff. They also feared “saying and doing ‘the wrong thing.’”

Terms such as “diversity” and “inclusion” are “conceptually ambiguous, rapidly evolving, and often conflated,” while the terms “equality” and “equity” have been “used interchangeably, incorrectly,” the panel found.

“Definitions of diversity, equity, and inclusion are contested and can even be—legitimately—mutually exclusive,” the report reads.

The report says it’s “not self-evident that focusing on visible characteristics promotes a meaningful level of diversity.”

It also says it’s evident that a new approach to diversity and inclusion is needed “as in recent years some well-meant practice has been shown to be counterproductive and, in some cases, unlawful.”

The reported cited a number of employment tribunal rulings in relation to discrimination based on gender-critical beliefs or being a white man, saying the cases exposed how “well-intentioned efforts to boost visible diversity can lead to unjustifiably unfair practices that amount to unlawful positive discrimination.”

During talks with managers and leaders from organisations, the panel found that non-legally-trained leaders are finding it difficult to navigate the Equality Act and associated duties, and some employers may be inadvertently breaking the law while trying to go “above and beyond the law” in their diversity efforts.

In its recommendations, the panel said the Equality and Human Rights Commission should explain and clarify the legal status for employers in light of recent rulings.

It also called on the government to endorse a new principles-based framework for diversity and inclusion, and fund and work with a research partner to develop a digital tool that synthesises and summarises evidence on various diversity and inclusion practices and interventions in a plain English, business friendly format.

Setting out the recommended guiding principles, the panel said heterogeneous, or meaningfully diverse, workplaces are desirable and beneficial; visible diversity alone does not automatically make an organisation meaningfully diverse or inclusive.

The panel also warned against the impact of ideological biases and ineffective diversity and inclusion initiatives.

Badenoch: Diversity Policies Should Unite

Ms. Badenoch said much of the report “makes for concerning reading.”

“Most employers mean well when they set about to improve diversity and inclusion. However, actions such as positive discrimination and quotas are unlawful, even if used to diversify an organisation,” she said.

The minister said the government believes diversity and inclusion “policies should unite rather than alienate employees, and crucially uphold fairness and meritocracy.”

She defended the government’s anti-woke credentials, saying, “No one should assume that a future government’s ministers will be as vigilant as current ones are in rooting out rubbish.”

Barrister: Cultural Drive to Define Law

Ms. Loutfi said the minister is “absolutely right” to say actions such as positive discrimination and quotas are unlawful.

Ms. Loutfi said while there are conflicts within the Equality Act, the law does not permit positive discrimination.

“The protected characteristic is universal. If you are white, then that is protected under the Equality Act. If you are a Christian, that is protected, if you are a man, a heterosexual man, your sexual orientation and your sex are protected. So you cannot discriminate against someone for being a white heterosexual Christian man,” she told The Epoch Times.

“The problem is that culturally, because these groups are seen to be historically less disadvantaged, discrimination doesn’t seem to matter so much from a cultural, political standpoint. But as a matter of law, a white Christian heterosexual man is protected, and has all the protected characteristics of a gay, disabled, lesbian woman of colour, but we don’t think like that.”

The lawyer blamed a “cultural drive to define law as political activists would like to see it,” which led to “a fundamental misunderstanding of what the protected characteristic is.”