Global Insights: Managing The Risks Of Employee Affinity Groups in the USA

22 Jul 2019

 

This article by Alberto Rodrigez is excerpted from Lexis Practice Advisor®. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the Power of Staff Networks or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


This article addresses how to manage the legal risk associated with employee affinity groups (also known as employee resource groups or employee networks) and provides guidance on creating employee affinity group policies. Employee affinity groups (i.e., employee groups formed around a shared personal characteristic or experience) are an increasingly common feature of the modern workplace.

 

As a diversity initiative, employee affinity groups often may implicate legally protected employee characteristics and activities. Employers must be careful not to run afoul of a variety of laws and regulations meant to protect employees from discrimination, harassment and retaliation based on their participation or nonparticipation in affinity groups. Furthermore, employers must also use caution not to run afoul of compensation requirements that may be triggered under wage-and-hour laws or interfere with employee rights to organize under the National Labor Relations Act.

 

Definitions, Types and Key Purposes of Affinity Groups

Affinity groups are generally organized based on shared personal characteristics, life experiences, professional interests or hobbies.Employee affinity groups may be based on characteristics such as race, gender, sexual orientation or parental status, among a variety of other shared demographic traits. Other affinity groups may take a cross-sectional approach and include people of different backgrounds, such as multigenerational affinity groups where participants from different age ranges come together to share their unique experiences and perspectives. All employees are normally free to participate or not in the activities of any affinity group.

 

Employee affinity groups can serve several purposes. Employers see employee resource groups as a way to attract candidates and retain employees who better reflect their business audience, which can improve their creation and delivery of products and services. Companies view this as an advantage in today’s increasingly globalized marketplace. In addition to achieving direct business objectives, affinity groups are also seen as integral to achieving a more inclusive working environment.

 

Mitigating Claims of Discrimination, Harassment and Retaliation in Connection With Affinity Groups

While employers may benefit from employee affinity groups in a variety of tangible and intangible ways, they are not without their legal risks. Federal law makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” or “to limit, segregate, or classify his employees or applicants for employment in any way, because of such individual’s race, color, religion, sex, or national origin.”

 

Affinity groups, because they may be organized around a characteristic protected by Title VII, may raise issues of discrimination by nonparticipants of affinity groups based on perceived favored treatment of affinity group participants. Affinity group members themselves may raise issues of perceived discrimination, which employers must handle in an appropriate manner through investigation and remedial action, if necessary.

While the case law on affinity groups is not very well-developed, existing case law illustrates some potential legal issues and claims that may arise where employers have made affinity groups a part of their work culture.

 

Moranski v. GMC

In Moranski v. General Motors Corporation, the plaintiff-employee alleged that GM discriminated against him by not recognizing his proposed affinity group focused on his religious beliefs (Christian). The plaintiff argued that by not recognizing affinity groups based on religious affinity, GMC was treating “nonreligious” employees more favorably than religious employees. The court disagreed and found that GMC has never recognized any affinity group that promotes or advocates any religious position or even one of religious indifference or opposition to religion. The court determined that GMC treated all employees holding religious positions equally by not permitting any affinity groups with a religious focus.

 

Ultimately, the court held that GM’s uniform treatment of all religious positions does not constitute religious discrimination in violation of Title VII. The court noted that GM’s encouragement of affinity groups based on certain protected characteristics did not require equal treatment of all other protected groups, finding no legal support for such “cross-categorical comparisons” in Title VII law.

 

The key takeaway from Moranski is that an employer is not necessarily required to recognize all types of affinity groups simply because it has already recognis ed certain employee groups. Employer liability for unlawful discrimination will depend on whether the employer treated all employees with the same protected characteristic equally. Employers should therefore carefully consider which affinity groups they recognize since this decision may have implications for recognition of other affinity groups in the same class.

 

Schwartzberg v. Mellon Bank NA

In Schwartzberg v. Mellon Bank[13] the employee plaintiff alleged that Mellon Bank failed to accommodate his religion (Hasidic Jew) by supporting an employee resource group for gay, lesbian, bisexual and transgendered, or GLBT, employees. In Schwartzberg, the plaintiff received an email invitation to a GLBT event. In response to the email, the plaintiff sent an email expressing his displeasure at receiving an invitation to the GLBT resource group event and further made other disparaging comments about GLBT people.

 

Mellon Bank reprimanded the plaintiff and advised him that his comments violated Mellon Bank’s anti-harassment policies. After Mellon Bank counseled the plaintiff about his inappropriate email correspondence, he continued to send material denigrating the GLBT lifestyle to a member of management.

 

As a result, Mellon Bank placed the plaintiff on a final written warning. The court ultimately found that Mellon Bank did not fail to accommodate the plaintiff’s religious beliefs because Mellon Bank, in supporting a GLBT employee resource group, did not require the plaintiff to engage in any activities that conflicted with his religious beliefs.

 

The key takeaway from Schwartzberg is that employee discomfort with certain affinity groups or activities, alone, will not expose employers to liability for discrimination. Employers should clearly communicate that affinity group activities are available to employees on a voluntary basis and avoid making employees feel that participation in affinity group activities or events is part of employees’ job duties.

 

Mahon v. American Airlines Inc.

In Mahon v. American Airlines, the plaintiff, a white male, alleged that his employer subjected him to reverse discrimination where American Airlines terminated his employment for his participation in a “Caucasian employee resource group.” As part of its corporate diversity program, American Airlines encouraged the formation of employee affinity groups based on various self-selected employee characteristics.

 

The plaintiff and other members of the employee resource group attended a diversity fair and distributed a pamphlet that allegedly contained white supremacist rhetoric. In a meeting to discuss this incident, the plaintiff arrived wearing a t-shirt depicting the “Turner Diaries,” a book containing white supremacist ideology and scenes of violence toward nonwhite people and “race traitors.” After an investigation into both incidents, American Airlines terminated the plaintiff’s employment based on the plaintiff’s violation of written work rules prohibiting threats and other intimidating or detrimental behavior toward employees. The U.S. Court of Appeals for the Tenth Circuit affirmed dismissal of the plaintiff’s claim of reverse discrimination.

 

The main lesson of Mahon is that anti-discrimination and anti-harassment policies are applicable to affinity group activities in the same manner as other workplace conduct. If harassment occurs during an affinity group activity, then the employee responsible for such harassment may face disciplinary measures.

 

Sinio v. McDonald’s Corp.

In Sinio v. McDonald's, the plaintiff, an Asian American employee, alleged race discrimination against supervisors who were members of an African-American networking organization designed to help African-American employees achieve promotions. The plaintiff alleged that her employer treated her differently than her non-Asian co-workers, who allegedly received a lighter workload and who the employer did not allegedly criticize as harshly for their work performance. The court found that the plaintiff presented sufficient evidence of disparate treatment to proceed to trial on her claim of race discrimination.

 

The key takeaway from Sinio is that employers should take steps to ensure that affinity group members are not receiving more favorable treatment in the workplace than non-affinity group members. Affinity group members should not receive, for example, more favorable workloads or better performance reviews simply because of their participation in affinity group activities. Employers should promptly investigate any allegation of workplace bias to prevent any improper use of a protected characteristic in making employment decisions.

 

Pilgrim v. McGraw-Hill Cos.

Finally, some employees may allege a claim of retaliation for voicing concerns at affinity group meetings. In Pilgrim v. McGraw-Hill, the plaintiff-employee contended that she frequently voiced her complaints about discrimination as a member of the voluntary African American affinity group and diversity council at McGraw-Hill. The plaintiff alleged that she regularly provided reports that purportedly showed African American employees received fewer promotions and had lower grade levels, turnover rates and salaries than Caucasian employees in similar positions at the company. The court dismissed the plaintiff’s retaliation claim for her failure to offer any evidence in support of her claim of retaliation.

 

Employers should be aware that affinity group activities may prompt discussion of perceived discrimination in the workplace. Where such issues are raised, an employer should take such allegations seriously and address them in the manner that it would normally address such concerns per company policy. Even if the allegations of discrimination are ultimately unfounded, an employer should not take any adverse action against employees expressing such concerns.

 

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