As a specialist equality lawyer, I have worked adjacent to the Diversity, Equality (or Equity) and Inclusion (“DEI”) industry for over 20 years without really being part of it. An observer rather than a practitioner.
By “DEI industry” I am referring to those whose work, whether in-house or as a service provider, has a significant DEI policy, consultancy or training element. According to PR Newswire (PRN), “The global market for DEI [was] estimated at $9.4 billion in the year 2022, and is projected to reach a revised size of $24.4 billion by 2030, growing at a CAGR (compounded annual growth rate) of 12.6% over the analysis period 2022-2030.”
At Ipswich and Suffolk Council for Racial Equality (“ISCRE”), one of the few remaining Race Equality Councils, my then-colleague, Phanuel Mutumburi, brought together police and community members at Suffolk Stop and Search Reference group or in one of the now many prisons and places of education ISCRE work in. He used skilful, complex facilitation and diplomacy, enabling and acting as a conduit (not as a representative) for the different ethnic minority communities to have their voices heard in and around the decision-making tables in Suffolk.
The best DEI practitioners can create environments where diverse people work together. Difficult conversations are initiated and facilitated, common goals can be agreed and put into action, data evidence and gaps analysis can be collected and measured, policy scrutiny undertaken with integrity and fairness, and complexity and challenge is accepted, even welcomed from all sides.
However, more recently, as a pro bono specialist equality law solicitor acting for a wide range of people concerned about discrimination and harassment, I have seen DEI increasingly being hijacked by social justice activists and those more interested in identity than integrity. Rather than following current equality law these activists seemed intent on misrepresenting current law, using DEI jargon like “intersectionality” and “micro-aggressions” and simplistic slogans like “trans rights are human rights” in the pursuit of narrow causes. Worse, cowed or credulous leaders of business, the public sector and charities, and politicians just parroted the mantras, with no thought. Some activists brooked no dissent.
An early example was in about 2018. I was reading DEI guidance to schools by a LGBTQ+ group called Allsorts. Alarm bells were rung by their advice essentially to allow those young people claiming a trans identity to use the changing facilities of the opposite sex, with no comment as to how this might impact on the current users, who had potentially conflicting rights under the Equality Act 2010. I expressed my concerns in moderate tones on social media which resulted in my receiving insults, accusations of bigotry and complaints to my employers and charity funders.
Even the publicity surrounding the publication of the legally sound Reindorf Review in 2020, written by leading specialist lawyer Akua Reindorf (now a KC), of the unlawful harassment of Professors Rosa Freeman and Jo Phoenix by activist students and staff at Essex University and the poor DEI advice by Stonewall did not halt this trend.
Most shockingly, we now have definitive evidence, from Employment Tribunal (“ET”) judgments, of unlawful discrimination and harassment resulting in part from actions of those with DEI roles in-house or external DEI consultancies selling their “expertise”.
My first example is in the well-known case of Forstater v CGD (2019). Maya Forstater worked as a consultant for CGD, a not for profit think-tank. Her contract was not renewed after some colleagues raised concerns about her “gender-critical” social media posts.
Ms Farah Mahesri, of the Quantum Impact Consultancy was commissioned by the think-tank CGD to write a report on Forstater’s social media posts. This report concluded that “Our main finding is that Maya fully knows exactly what in her arguments and her writings is offensive and discriminatory.” Clearly, this is a view the eventual ET disagreed with in finding for Forstater.
The judgment stated at para 182, “The Tribunal considered that this reference to Ms Forstater’s “argument” was in truth a reference to her belief and that this showed that apart from any issues as to the language used, Ms Mahesri concluded that this belief was itself offensive.”
Ms Mahesri also stated, “Argument itself is offensive. Maya’s main argument that transgender women are not women is at baseline offensive because it seeks to eliminate the existence of a group of people”.
Any half-decent specialist UK Equality Act expert commissioned to consider the conduct would have addressed such an issue differently. By implication, Mahesri was suggesting Forstater had caused unlawful harassment on the grounds of gender reassignment. There was no analysis of Forstater’s competing equality or human rights such as her beliefs or freedom of expression. Ms Mahesri did not advise on the necessary weighing up of evidence in accordance with equality law and human rights.
The next example is the case of Professor Jo Phoenix v Open University(2021) and the role of Dr Leigh Downes, who, as well as being Senior Lecturer, was an internal DEI lead within the same department of the University as Phoenix.
The ET heard that Phoenix was accused of transphobia because of her belief that biological sex is immutable, real and important, and that sex cannot be conflated with gender identity.
The harassment ramped up in 2021 after she co-founded the Gender Critical Research Network. Colleagues, including Downes, circulated an open letter which called for the OU to withdraw support from the network and alleged that she and her co-founders were hostile to trans people’s human rights.
The ET found the OU liable for more than 25 instances of belief discrimination and harassment, leading to unlawful constructive dismissal.
In para 593 of the judgment the ET determined various members of staff, including Downes, “considered gender critical beliefs transphobic and harmful and so did not want a network of academics in their university researching from a gender critical perspective, disaffiliation by the University was just one way to achieve this. If the University had complied with the demands in the letter, it would have been the OU sending a clear message of disapproval of such research saying that they did not want to be associated with such a network.”
The ET was critical of several University’s witnesses including Dr Downes (who uses they/them pronouns). When questioned about the authorship of the open letter, Dr Downes’ evidence was summarised in the judgment at para 604 as, ”When asked directly who they received the Open Letter from, they couldn’t remember, and they said they thought it was anonymous or they didn’t know who was involved in writing the letter. They said it didn’t include them even though they added the signature section to the letter which turned the letter into a petition.”
At para 615 “On multiple occasions, whenever gender critical views were expressed at the OU, Dr Downes complained or tried to get the view suppressed”.
So a DEI lead, far from preventing or challenging unlawful discrimination and harassment, was an active participant in it.
My final example is the case of Borg-Neal v Lloyds Banking Group (2022).
The claimant, Mr. Borg-Neal, was an experienced bank manager with an exemplary disciplinary record who attended a race awareness training session run by DEI trainers including Ms Naomi Osei of APS Intelligence, a high-profile DEI company run by John Amaechi OBE.
The claimant inadvertently used the “N word” in full while asking a question about its contextual use amongst black people in the workplace. Though he apologised immediately and did not intend harm, the trainer reported the incident as highly distressing. Following an investigation, Lloyds dismissed him for gross misconduct, citing the inappropriate use of language in a professional setting. The Employment Tribunal ruled that his dismissal was unfair and also constituted discrimination arising from disability (dyslexia), as his use of the word was linked to difficulties in judging language and context due to his condition. It considered the conduct was in the context of a race education training session. The question he posed was in context, well -intentioned and the word not used abusively to describe a person or group of people. In determining whether unlawful harassment has taken place, all the circumstances and the context in which the unwanted conduct occurs should be taken into account. In this situation this seems not to have been considered. The Tribunal concluded that while it was misconduct, no reasonable employer would have regarded it as gross misconduct.
The tribunal emphasised that alternatives to dismissal, such as further training, should have been considered.
In my view, the DEI training company’s conduct influenced the outcome by escalating and overplaying the incident. This in turn led to Lloyds dismissing Borg-Neal without adequately investigating the circumstances. The trainer claimed significant distress but was not directly interviewed during Lloyds’ inquiry. The training context and the issue of Borg-Neal’s disability was not sufficiently factored in. The tribunal found that this approach lacked proportionality, resulting in an unfair dismissal that failed to balance workplace standards with reasonable understanding of the possibility of someone saying clumsy things inadvertently in a training situation nor adjustments for disability.
It is clear from the trainer’s reaction and the subsequent interview with Amaechi that the DEI consultancy held and advocated a zero-tolerance approach to the use of the specific word in the workplace. The difficulty is that in some situations, such as this one, zero tolerance policies may themselves be unreasonable or discriminatory. This precise incident is rare; people saying clumsy, inappropriate things in a “safe” training space is not. The training company should have anticipated the possibility and worked out a process for trainers, which balanced the competing equality rights, but with the professional duty of the trainer to educate the learners as the focus.
So at least sometimes DEI practice, as it currently is, resulted in unlawful discrimination and harassment.
What particularly concerns me is the absence of evidence of subsequent open, honest reflection on the part of the DEI industry regarding these serious failings. Where is the learning, evidenced in blog-posts or podcasts? The silence, or retreat into echo chambers, is the most concerning element as it indicates an unwillingness to improve or even acknowledge that missteps were made. This needs to change.