On June 29, 2023, the US Supreme Court ruled that the US Constitution prohibits American universities from having affirmative action policies on the grounds of race. Jenny Bacon, paralegal, and Emma O’Connor, director, discuss what impact this judgement could have in the UK.
The background to the US Supreme Court decision is that, for many years, affirmative action policies had been used by some universities to increase the number of Black, Hispanic, and other underrepresented groups of students on American university campuses. The US Supreme Court has ruled that these policies breach the US Constitution’s pledge of equal protection under the law. The Supreme Court judges said they believed applicants could still describe how their race had “affected his or her life, be it through discrimination, inspiration, or otherwise", and universities could still use considerations such as geographic origin or economic disadvantage to diversify their student population. Whilst some welcomed the Supreme Court’s decision, others questioned whether limiting the numbers of underrepresented groups at US universities could have a knock-on effect in terms of representation in the workplace.
Positive action in the UK
In the UK, we do not have the concept of affirmative action. Instead, under the Equality Act 2010, there is something called “positive action”. This is the use of measures which are permitted under the Equality Act 2010 to help and enable people from under-represented workplace groups to overcome barriers when competing with other applicants who are not under-represented. The aim of positive action is to lessen and remove discrimination from the workplace, making it more equal. Examples include:
targeting job adverts at under-represented groups to encourage them to apply for opportunities;
recruiting a person with a protected characteristic, such as age, disability, and race, rather than another equally qualified person who does not have that/those protected characteristic(s);
offering mentoring schemes to under-represented groups; or
offering pre-application training, such as help with improving CVs.
Although UK employers must be careful not to allow their EDI policies to positively discriminate, which, under the Equality Act 2010 is prohibited, businesses and organisations in the UK could look at what practical steps they could take to encourage and support those from underrepresented groups. For example, think about your policies relating to family leave or maternity return – how supportive are you as an employer of women returning to the workplace after maternity leave? How generous is your flexible working policy for parents or carers? Do you support older workers within the organisation, or are you losing a great wealth of talent once staff hit 55 years of age? Are your recruitment processes inclusive, or do you focus on recruiting in the same image each time?
Our specialist EDI team can assist with EDI audits, analysis, training, and review of workplace equality policies, including recommendations and solutions. Please contact Claire Taylor-Evans today for more information. Alternatively, view our Employment page to see how our team can assist with various legal matters.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.