I am pleased to post my recent article for SHRM's HRMagazine:
Legal Trends Affinity Group Danger Zones
Vol. 58 No. 9
Structure affinity groups so they are lawful.
Smart organizations want to increase employee engagement and inclusion. One way to do that is through affinity groups.
What are affinity groups? They are groups of employees who have a common interest or characteristic. Sometimes the commonality is based on a factor that is not protected under equal employment opportunity (EEO) laws, such as the employees’ position. Usually, however, affinity groups are built around EEO-protected characteristics, such as race, gender and sexual orientation, and are supported financially by the organization.
There are obvious benefits to having affinity groups. They can increase morale, retention and innovation, as well as business, because of greater inclusion of diverse perspectives.
In some organizations, an affinity group may be seen as the antidote to marginalization of certain groups of employees. Affinity group meetings provide a place to experience business and social inclusion for those who are or feel marginalized.
Yet, these groups, if not structured properly, can have divisive and exclusionary effects. Moreover, there are legal risks that need to be navigated. Just because the goal of the affinity group is laudable does not mean that the group is lawful.
The following four hypotheticals highlight some of the legal and business risks of affinity groups, with recommendations on how to manage them.
Affinity Group For White Men
Employer ABC has affinity groups for women; people of color; and lesbian, gay, bisexual and transgender employees. The employer provides financial and other support for these groups so that they legally would be characterized as benefits of employment.
A group of white men asks to form an affinity group. The HR leader considers saying, "You don’t need one. You already have one; it’s called the senior leadership team," which is made up of white men but for one exception.
The emotion behind the fantasy response may be understandable, but the response is, of course, inappropriate because legal risk would accompany it. Title VII’s prohibition on gender bias knows no gender. The same is true of racial bias. Denying a benefit to employees because they are white and male is, well, discrimination. But that does not mean that the request necessarily needs to be honored.
The key for an organization is to develop upfront nondiscriminatory criteria in determining whether it will provide financial or other support for a proposed affinity group. Among the criteria an organization may consider are the following:
How will the proposed affinity group help its members achieve the company’s mission and goals?
How will the proposed affinity group increase inclusion and business development among the individuals in the group (as opposed to employees generally)?
Are other affinity groups or mechanisms already in place that serve the need addressed by the request?
Making decisions about proposed affinity groups based on the answers to these kinds of questions doesn’t eliminate all legal risks, but it does minimize them.
Let’s return to the white men at Employer ABC. If the organization’s power circle is dominated by white men, the white men seeking to form an affinity group may have an uphill battle. But would that be true for a group of entry-level employees in human resources?
There is no clear-cut answer; rather, it depends on applying legitimate nondiscriminatory factors.
If Employer ABC has an affinity group for women and not one for men, it might consider including men in a broader affinity group on gender that would focus, although not exclusively, on issues women face that men don’t.
It is not that you need men to be part of the group for legitimacy. You don’t. But men can learn from being included, and men who are enlightened about the obstacles that women often face are more likely to become mentors and sponsors for female colleagues.
In her groundbreaking book, Lean In: Women, Work and the Will to Lead (Knopf, 2013), Facebook COO Sheryl Sandberg asks how organizations can survive, let alone thrive, if they exclude half of their talent. She quotes Warren Buffett as attributing his success, in part, to competing with only half of the talent pool.
Isn’t a business going to be more successful if it doesn’t exclude half of its talent—in this case, the half that often has disproportionate power?
Sandberg specifically refers to her many male mentors and sponsors. She recognizes that men are not the enemy; explicit and implicit bias is. And men and women alike have a stake in eliminating it.
Not all champions of equal employment opportunity support affinity groups. One concern is that such groups may separate those they are designed to benefit. This legitimate concern should affect how affinity groups are structured.
Religious Group Exclusion
Your organization has myriad affinity groups but none based on religion. In response, a group of born-again Christians asks for affinity group status and funding.
You don’t check the mission statement. That’s because you have an explicit exclusion for religious groups. Is that lawful? Is it desirable?
To be clear, this is not about saying yes to a Jewish group and no to a Buddhist group. This is about saying no to all religious groups.
Federal law prohibits discrimination based on religion. If you allow groups based on gender and race but not on religion, while treating all religions the same, are you discriminating against religion?
The 7th U.S. Circuit Court of Appeals said no. To quote the court, there are "no cross-categorical" claims under Title VII. In other words, the existence of affinity groups in one category—say, gender—cannot be used as the basis for arguing that it is unlawful not to allow an affinity group in another category, such as religion. (Moranski v. General Motors, 433 F.3d 537 (7th Circuit 2005)).
But other circuits could decide differently. The 7th Circuit’s analysis has been criticized as hostile to religion. Some states could reach different conclusions as well; many states provide greater religious protections than federal law.
Moreover, religion is of vital importance to many U.S. workers. Having a blanket exclusion for religious affinity groups risks alienating people of faith. Even if it is lawful for organizations to exclude religious affinity groups, they do so at their own peril: They risk alienating too much talent.
For those reasons, religious affinity groups should be allowed. The criteria that apply to affinity groups organized around gender and race should apply to them, too.
Nonetheless, there are some requirements that employers may wish to impose on religious affinity groups, such as that the group’s purpose cannot be to proselytize other workers. Appropriate limitations, rather than blanket exclusions, are the solution.
Your company has an affinity group for those who identify themselves as racially diverse. It is principally, though not exclusively, made up of black and Latino employees. Some of the group members are managers.
During conversations, a few group members allege that a manager has made racist remarks. They further note that he gives plum assignments to white employees only.
Wanting the group members to feel comfortable, the managers in the room respect the employees’ wishes and do not report what they have heard.
Later, one of the employees is let go for poor performance. He claims race discrimination and notes in his allegations that management was aware of his concerns and did nothing. Where did management learn of these concerns? In the affinity group.
Managers who participate in affinity groups may place themselves in a Catch-22. They want to encourage open dialogue, but if the dialogue includes allegations of unlawful conduct, they cannot ignore what they know.
If they know it, their knowledge is imputed to the organization. While it is not always clear what an organization’s leaders must do, they cannot do nothing when they learn of potentially unlawful conduct.
To minimize this risk, you may want to make clear that the purpose of the affinity group is not to raise individual concerns and that employees who have them should refer to the employer’s EEO policy and use its complaint procedure.
Further, managers should be careful not to make absolute assurances of confidentiality that they may not be able to honor.
Of course, stating the rules is easier than determining whether a particular comment is a complaint that must be investigated. But you can minimize the risk, even if you cannot eliminate it, by setting parameters upfront.
Your affinity group of older employees develops a list of proposed changes to the organization. Management listens to the employees and decides to implement some of the changes.
While this sounds like a management success story, it may violate the National Labor Relations Act (NLRA).
Section 8(a)(2) of the NLRA makes it an unfair labor practice for an employer to "dominate or interfere with the formation or administration of any labor organization or contribute financial or other support." The term "labor organization" has been interpreted broadly to include a variety of employee participation committees or groups that "deal with" an employer.
It could include affinity groups. Yes, the NLRA could make it harder to achieve equal employment opportunity, the linchpin of affinity groups.
Remember that the statute applies to union and nonunion employees alike. Employees are defined to exclude individuals who are considered supervisors and managers under the NLRA.
You could avoid any NLRA risk by limiting membership in your affinity groups to supervisors and managers. But then why have the groups at all? So, assuming you include employees, how do you manage the risk?
Typically, there is no on-off switch that determines when an affinity group becomes a labor organization at risk of unlawfully "dealing with" the employer. But there are a number of steps you can take to minimize the risk that your affinity group will be a labor organization and that your meeting with and considering its proposals will violate the NLRA as interpreted by the National Labor Relations Board.
You could make clear that the group is not authorized to offer any recommendations to management. Then you would avoid any chance of "dealing with" management. But that may diminish the affinity group’s effectiveness.
If you are going to allow the affinity group to make suggestions, you should stress that it is making suggestions only—just as any individual or group can—which management can consider or reject at its sole discretion. No bargaining sessions, please!
You absolutely should make clear that each member of the affinity group speaks for himself or herself and that the group is not representing those who share its defining attribute. In other words, the group does not perform a representative role. This is important not only for legal reasons but also for business reasons. Employees of a particular gender, race or sexual orientation are not monolithic in their perspectives, and some people may resent having others speak for them.
There are other steps you can take to minimize the legal risk, but they are beyond the scope of this article. The point for now is to be aware that the risk exists and that it should be managed.
Jonathan A. Segal is a contributing editor of HR Magazine and a partner at Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_Law.
This articles does not constitute legal advice, pertain to specific factual situations or create an attorney-client relationship.