To Affinity and Beyond: A Look at Legal Risks and Recent Trends in Corporate Affinity Groups

By Felix M. Digilov - Shawe Rosenthal LLP

May 4, 2018

Affinity groups, also known as employee resource groups, have been a popular tool for companies to meet diversity and inclusion goals by helping to attract, retain and develop women, minorities, and other underrepresented protected groups in the corporate hierarchy.  Recent estimates have shown that up to 90% of Fortune 500 corporations utilize affinity groups to promote a more inclusive and diverse work environment.  Other benefits of affinity groups for corporations include employee mentorship opportunities, the exchange of ideas, suggestions to improve company culture, and increased employee morale by displaying company support for employees’ voices and interests.

If your company is considering instituting affinity groups in your organization, it is important to keep in mind that there are potential legal pitfalls in promoting these groups.  Many affinity groups are organized around protected classifications found in the 1964 Civil Rights Act and thus carry a risk that company decisions regarding affinity groups could be perceived as having a discriminatory intent.  Therefore, it is important to treat affinity groups based on the same protected activity equally.

For example, in Moranski v. Gen. Motors Corp., 433 F.3d 537 (7th Cir. 2005), an employee claimed religious discrimination against his employer when GM disallowed a proposed “Christian Employee Network” under the company’s affinity group program. The GM affinity group program prohibited establishing any affinity group that promoted a religious position.  Therefore, the court held that GM’s refusal did not constitute religious discrimination because the employer treated all groups with religious positions equally.

For unionized work places, employers risk violating Sections 8(a)(2) and 8(a)(5) of the NLRA by discussing terms and conditions of employment, such as wages, rate of pay and hours of employment, with an affinity group instead of the union.  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.  An affinity group could be deemed to be a “labor Organization” under Section 2 (5)  the NLRA if it “exists for the purpose, in whole or in part, of dealing with [the Company] concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work”. Section 8(a)(5) requires that an employer address terms and conditions of employment with its union and not any other employee or group.  Therefore, the employer should make it clear that any affinity group’s purpose is not to discuss grievances, wages or other terms and conditions of employment during its meetings.

Finally, the effectiveness of affinity groups in facilitating the promotion of women to senior executive positions has been called into question by a new study done by LeanIn.Org and McKinsey & Co.  According to this study, men still outnumber women in senior executive positions by approximately 4 to 1.  Some companies have reduced the role of stand-alone affinity groups in their corporate diversity programs and instead have chosen to involve broader groups of employees as participants in workplace diversity initiatives.  For instance, consulting firm Deloitte Touche Tohmatsu Ltd., which has traditionally had many affinity groups comprised of minorities and women, has found that men have become more likely to leave the company than women.  In order to foster a more inclusive culture, Deloitte has opened some formerly women-only programs to men as well as formed “inclusion councils” that involve all employees across the firm to promote diversity and inclusion initiatives.

While the McKinsey & Co. study found that the majority of the 222 employers in their study (83%) will retain their affinity groups, companies may want to consider broadening the number of stakeholders in their diversity and inclusion initiatives if they want to see greater number of women and minorities in their corporate boardrooms.