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Corporate Counsel Connect collection

September 2017 edition

Affinity groups in the workplace

Practical Law Labor & Employment

This Practice Note describes legal considerations and best practices for affinity groups in private workplaces. This Note addresses the benefits and risks associated with workplace affinity groups, including potential discrimination and hostile work environment claims, wage and hour issues, and traditional labor law matters, and the steps employers may take to minimize these risks. This Note addresses federal law.

Working groupAffinity groups, also known as employee resource groups, are employee groups organized based on social identity, shared characteristics, or life experiences. Affinity groups are generally initiated by employees and often involve or implicate protected classes, such as sex, gender, sexual orientation, race, national origin, disability, and veteran status. Examples of affinity groups include women in the workplace; working parents; lesbian, gay, bisexual, and transgender (LGBT) groups; and any other group based on a common set of interests.

Private employers are not required by federal law to have workplace affinity groups. Many employers choose to recognize and support these groups because of the benefits they provide to both the employer and its employees and the business purposes they serve. These business purposes include employee recruitment, retention, and professional development. As the U.S. Supreme Court noted in a case challenging a law school’s diversity-conscious admissions policy, “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints” (Grutter v. Bollinger, 539 U.S. 306, 330 (2003)). Affinity groups are one method employers use to attract, retain, support, and foster the exchange of ideas from employees of diverse backgrounds.

As employer-sponsored diversity initiatives like affinity groups become increasingly popular in the workplace, employers should also be aware of the legal considerations and risks associated with affinity groups and the best practices to minimize these risks. This Note discusses the benefits and limitations of workplace affinity programs and the steps employers may take to avoid legal pitfalls in the process.

For more information about equal opportunity and diversity in the workplace in general, see:

Benefits and risks of affinity groups

Affinity groups have many recognized benefits for both employers and employees, including:

  • Attracting, recruiting, and retaining employees
  • Promoting diversity, cultural awareness, and an inclusive work environment
  • Increasing employee job satisfaction, morale, and productivity
  • Fostering professional development and learning through mentoring, networking, open dialogue, and the exchange of ideas
  • Providing a support group for employees
  • Enhancing the employer’s public image in its marketing, recruiting, business development, and other external efforts

There are also several potential disadvantages and risks to these groups, including:

Legal considerations

Discrimination and harassment claims
Employment discrimination is prohibited by federal, state, and local statutes (see Practice Note, Discrimination: Overview and Anti-Discrimination Laws: State Q&A Tool). Like any other employment action, decisions made by employers regarding affinity groups are susceptible to disparate treatment claims by employees who claim they were treated differently based on membership in a protected class. Employers may also face harassment or hostile work environment claims based on conduct or comments made in the context of affinity groups, particularly because affinity group discussions often involve sensitive topics.

There are few reported cases addressing discrimination claims stemming from workplace affinity groups, but these decisions provide helpful guidance to employers. Based on this guidance, employers should:

  • Treat affinity groups based on the same protected activity equally. In Moranski v. General Motors Corporation, an employee claimed that his employer discriminated against him based on religion by declining to allow a proposed “Christian Employee Network” under the company’s affinity group program. The affinity group program, which made company resources available to recognized groups, prohibited recognizing any group that promoted or advocated a religious position. The court held that the employer’s refusal to grant affinity group status to the employee’s proposed Christian group did not constitute religious discrimination because the program treated all groups with religious positions equally. (433 F.3d 537 (7th Cir. 2005).)
  • Implement and enforce anti-harassment policies to address disrespectful behavior in affinity groups. In Schwartzberg v. Mellon Bank, N.A., an employee member of an affinity group for people with disabilities became offended by an email inviting him (and all other employees) to a luncheon cohosted by the employer’s LGBT affinity group. The employee claimed that his religious beliefs did not condone sexual relations between members of the same sex and that the employer and other employees encouraged him to support and condone homosexual activity by having an LGBT affinity group and by encouraging attendance and support at a lunch and learn meeting for the group. The employee then sent offensive messages to other employees that described his religious opposition to homosexuality, and the employer issued him several warnings for violating the employer’s anti-harassment policy (and ultimately terminated him for sleeping on the job). The employee brought a lawsuit claiming that the employer failed to accommodate his religious beliefs under Title VII. The court found that the employer’s requirements (prohibiting conduct that denigrates or shows hostility on the basis of sexual orientation) did not conflict with the plaintiff’s religious beliefs because:
  • Avoid treating a member of a particular affinity group differently than individuals in other affinity groups. In Flood v. Bank of America Corporation, the plaintiff alleged sexual orientation harassment based in part on her supervisor prohibiting her from attending LGBT affinity group meetings during work hours, even though other employees were permitted to attend similar types of meetings. The court denied the employer’s motion for summary judgment on the plaintiff’s hostile work environment claim, finding that genuine issues of material fact existed about whether the alleged acts of harassment were based on the plaintiff’s sexual orientation and sufficiently severe and pervasive. (780 F.3d 1, 12 (1st Cir. 2015).)

Two additional cases illustrate the types of claims employees may bring. For example:

  • In Mahon v. American Airlines, Inc., as part of its corporate diversity program, the employer encouraged the formation of employee resource groups with memberships of various self-selected types of employees. Employees formed a Caucasian Employee Resource Group (ERG) and distributed a pamphlet created by the plaintiff containing white supremacist rhetoric at a diversity fair the employer held for its employee resource groups. The plaintiff also wore a shirt depicting racist literature during a meeting with management to discuss the incident. The employer suspended the Caucasian ERG’s privileges for six months for violation of ERG rules and, after an investigation, terminated the plaintiff’s employment for violating written work rules that prohibited threatening and intimidating behavior toward other employees. The employee filed a lawsuit claiming that other members of the Caucasian ERG were not disciplined for distributing the pamphlets and that the employer did not discipline or terminate an African American employee who wore a Malcolm X shirt at work. In a non-precedential decision, the court initially found that the complaint sufficiently stated a race discrimination claim under Section 1981 to withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure but ultimately granted the employer’s motion for summary judgment and dismissed all claims. (71 F. App’x 32, 33 (10th Cir. 2003) and 145 F. App’x 634, 635 (10th Cir. 2005).)
  • In Jeffries v. Verizon, the plaintiff was a member of the Native American People of Verizon, an employee resource group sanctioned by the employer. Every few months, the employer held a diversity meeting where corporate representatives and members from each employee resource group would gather. During one meeting, a human resources officer stated that the Native Americans group would never be permitted to attend the Development Leadership Institute, a training and development initiative offered to the employee resource groups. The plaintiff brought a lawsuit claiming, among other things, that his employer discriminated against him based on his race and ethnic origin as a Native American in violation of Title VII. However, the court did not reach the merits of the plaintiff’s discrimination claim, finding instead that the plaintiff failed to exhaust administrative remedies and file a timely discrimination charge. (2012 WL 4344197, at *5 (E.D.N.Y. Aug. 31, 2012).)

For tips on avoiding discrimination claims in the context of affinity groups, see Protecting Against Legal Claims.

For more information about discrimination and harassment claims in the workplace, see Practice Notes:

For information on state anti-discrimination laws, see Anti-Discrimination Laws: State Q&A Tool.

Retaliation Claims

Anti-retaliation provisions of federal and state anti-discrimination laws protect employees from being retaliated against for engaging in protected activity. To state a retaliation claim, employees generally must show that:

  • The employee engaged in protected activity known to the employer.
  • The employer later took a materially adverse employment action against the employee.
  • The adverse action was causally connected to the protected activity.

What constitutes protected activity varies from statute to statute. Under Title VII, for example, protected activity includes:

  • Opposing any practice prohibited by Title VII.
  • Filing a charge of discrimination under Title VII.
  • Testifying, assisting, or participating in an investigation or proceeding under Title VII. (42 U.S.C. § 2000e-3.)

It is unlikely that membership or participation in an affinity group alone would be considered protected activity (though disparate treatment based on membership may lead to a discrimination claim) (see Discrimination and Harassment Claims). However, certain activities within the context of an affinity group may be protected, including:

  • Complaints about discriminatory treatment based on sexual orientation made through an LGBT affinity group.
  • Complaints by members of a women’s affinity group who complain that women are paid less than men.
  • Complaints that the employer fails to recruit or hire employees of a certain race made through an affinity group that advances the interests of racial or ethnic minorities.

Employers must be careful not to take any adverse employment action against an employee for conduct in the context of an affinity group that may be considered protected activity (see Protecting Against Legal Claims).

For more information about prohibited retaliation under federal and state anti-discrimination laws, see Practice Note, Retaliation and Anti-Discrimination Laws: State Q&A Tool: Question 4. For a model policy, see Standard Document, Anti-Retaliation Policy.

Wage and hour issues

Employers must ensure they properly compensate nonexempt employees for time spent attending or participating in workplace affinity group meetings or activities. The FLSA requires employers to compensate an employee for all hours worked. Work not requested by the employer but “suffered or permitted” is work time (29 U.S.C. § 203(e)(1) and (g); 29 C.F.R. § 785.11). This rule applies to work performed away from the employer’s premises or the job site (29 C.F.R. § 785.12).

Whether time spent in affinity group activities is compensable under the FLSA depends on the nature of the activity and the conditions surrounding it. Relevant Department of Labor (DOL) regulations address the compensability of employee time spent:

  • In meetings, lectures, and training programs.
  • On charitable or civil purposes.
  • Developing suggestions under a general suggestion system.

Time spent attending employer-sponsored lectures, meetings, and training programs is generally considered compensable under the FLSA (Chao v. Tradesmen Int’l, Inc., 310 F.3d 904, 907 (6th Cir. 2002)). However, DOL regulations provide that attendance at lectures, meetings, training programs, and similar activities does not need to be counted as working time if:

  • Attendance is outside of the employee’s regular working hours.
  • Attendance is “in fact” voluntary, meaning that:
    • attendance is not required by the employer; and
    • the employer does not lead the employee to understand or believe that the employee’s non-attendance would adversely affect the employee’s present working conditions or continued employment. (29 C.F.R. § 785.28.)
  • The course, lecture, or meeting is not directly related to the employee’s job (29 C.F.R. § 785.29).
  • The employee does not perform any productive work during the employee’s attendance. (29 C.F.R. § 785.27.)

DOL regulations also provide that employees must be paid for time spent working for civic or charitable purposes if the work is:

  • At the employer’s request.
  • Under the employer’s direction or control.
  • While the employee must be on the employer’s premises.

However, time spent voluntarily in civic or charitable activities outside of the employee’s normal working hours is not hours worked under the FLSA and does not need to be compensated. (29 C.F.R. § 785.44.)

DOL regulations also provide that time spent by employees outside of their regular working hours in developing suggestions under a general suggestion system is not working time. However, the time must be counted as hours worked if employees are either:

  • Permitted to work on suggestions during regular working hours.
  • Assigned to work on the development of a suggestion. (29 C.F.R. § 785.45.)

Depending on the affinity group and the specific activity at issue, employee time may fall within the scope of these regulations as a meeting, charitable activity, or suggestion system. If nonexempt employees are not compensated for time spent during affinity activities, employers must ensure that all of the conditions of these regulations are met. Otherwise, the employer must compensate employees for this time. (See Protecting Against Legal Claims.)

For more information about wage and hour issues and compensability of time, see Practice Notes:

For more on state laws, see Wage and Hour Laws: State Q&A Tool and Hour Laws.

Traditional labor issues

Unions and collective bargaining

Employers risk violating federal labor law if they bargain with affinity groups regarding employees’ terms and conditions of employment by:

  • Dominating or interfering with the formation of an affinity group and treating it as a labor organization.
  • Failing to bargain with a union that already represents employees.

Under the NLRA, it is a ULP for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it” (29 U.S.C. § 158(a)(2)). A labor organization is defined as: “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose ... of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” (29 U.S.C. § 152(5).)

Employers often sponsor, contribute funds to, or otherwise support workplace affinity groups. As a result, an employer risks committing a ULP by treating the affinity group like a labor organization and “dominating” or “interfering” with it.

The National Labor Relations Board (NLRB) and reviewing courts have found various employee groups and action committees established to address employee problems or grievances to be labor organizations under Section 2(5) of the NLRA. The NLRB has also found that employers violated Section 8(a)(2) of the NLRA by completely dominating and interfering with the formation, administration, or activities of these groups. This domination or interference occurred where employers:

  • Created the group.
  • Determined the group’s structure and function.
  • Allowed employees to carry out activities at the employer’s facilities on paid time. (See, for example, Electromation, Inc., 309 N.L.R.B. 990 (1992); NLRB v. Clapper’s Mfg., Inc., 458 F.2d 414 (3d Cir. 1972))

It is also a ULP for an employer to refuse to bargain collectively with the representatives of its employees (29 U.S.C. § 158(a)(5)). When a union is certified by the NLRB or voluntarily recognized by an employer as the representative of employees in a bargaining unit, it becomes the exclusive bargaining agent for all employees in the unit regardless of individual employees’ membership in the union. Once a union becomes an exclusive collective bargaining representative, the NLRA:

  • Requires the employer to bargain with the union over wages, hours, and other terms and conditions of employment of bargaining unit employees.
  • Requires the union to represent equally and fairly all employees in the unit, regardless of their union membership or activities.
  • Prohibits an employer from bargaining:
    • directly with employees; or
    • with another union

Employers risk violating Section 8(a)(5) of the NLRA by addressing terms and conditions of employment with an affinity group or its members instead of the union that represents these employees (see Practice Note, Collective Bargaining Under the National Labor Relations Act: The Duty to Bargain and Subjects for Bargaining).

To avoid committing a ULP, employers should:

  • Make clear that an affinity group’s purpose is not to represent employees regarding the terms and conditions of their employment. For example, employers may include a statement to this effect in the employer’s policy on affinity groups (see Drafting an Affinity Group Policy).
  • Refrain from engaging in discussions or proposals with affinity groups or their members about the terms and conditions of employment, including:

Protected concerted activity

The NLRA protects employees’ rights to join together with coworkers to address issues at work, with or without a union (29 U.S.C. § 157). To be protected by Section 7 of the NLRA, concerted activity must occur for the group’s mutual aid or protection. Federal courts and the NLRB have interpreted the statutory phrase “concerted activity for mutual aid or protection” broadly to include activities that are both:

Employers must be careful not to treat affinity groups as a labor organization (see Unions and Collective Bargaining). However, employers also must not infringe on employees’ Section 7 rights by restricting topics that may be discussed in affinity group meetings or activities. Employers should also consider including a disclaimer in the employer’s affinity group policy. This disclaimer may state that nothing in the policy is intended to interfere with employees’ Section 7 rights under the NLRA (see Drafting an Affinity Group Policy and Protecting Against Legal Claims; see also Standard Clause, Policy Disclaimer of Restrictions on Employees’ NLRA Rights).

For more information about ULPs and protected concerted activity, see Practice Notes, Labor Law: Overview: Unfair Labor Practices and Employee Rights and Unfair Labor Practices Under the National Labor Relations Act.

Policies and best practices

Implementing appropriate policies and procedures, as well as identifying and consistently following best practices, can help employers avoid legal pitfalls in the recognition and administration of affinity groups in the workplace.

  • Draft, implement, and enforce a written affinity group policy.
  • Train managers and affinity group leaders on best practices to ensure compliance with applicable law, rules, and regulations and protect against legal claims.

Drafting an affinity group policy

An important first step in having workplace affinity groups is implementing and distributing a written affinity group policy and consistently abiding by this policy. The affinity group policy can be drafted as a stand-alone policy or incorporated into an employee handbook. For a sample policy, see Standard Document, Affinity Groups in the Workplace Policy.

In this policy, employers should specify rules and guidelines for affinity groups, including:

  • The purpose of both the policy and affinity groups (including a disclaimer disavowing any intent for the affinity group to represent employees regarding terms and conditions of employment).
  • A definition and description of affinity groups, including a statement explaining the benefits to employees and the employer derived from affinity groups.
  • The department responsible for approving and administering affinity groups (for example, the employer’s human resources department or diversity officer).
  • A clear statement that membership in any affinity group may not be limited based on an employee’s race, national origin, religion, sex, gender, sexual orientation, or other protected category, even if one of these protected categories is part of the common interest or purpose of the affinity group.
  • Permissible and impermissible types of affinity groups, including:
    • examples of legitimate business purposes (for example, promoting employee development, recruitment, retention, work and life balance, cultural awareness, or diversity); and
    • a description and examples of types of affinity groups the employer does not recognize (for example, groups that exclude certain employees, groups that do not promote employment-related purposes, such as groups based solely on sports or outside hobbies, or specific exclusions, like any group that advocates religious or political positions).
  • The criteria and procedure to form an affinity group, including:
    • employee eligibility (for example, all current full-time or part-time employees);
    • the minimum number of employees required to start an affinity group;
    • the contents of an affinity group proposal (for example, the group’s business purpose, mission statement, charter, bylaws, organizational structure, and key activities); and
    • the procedure for submitting an affinity group proposal.
  • Applicable rules and ongoing responsibilities of an affinity group, including:
    • opening membership to employees regardless of their protected characteristics;
    • providing reports to the department or position responsible for overseeing affinity groups;
    • obtaining approval for use of the employer’s resources, budgeting, or expense reimbursement;
    • scheduling and time-off requests (for example, specifying whether meetings or other activities must be held outside of work hours or whether employee attendance is permitted during work hours);
    • adhering to timekeeping requirements;
    • directing members to the employer’s anti-harassment policy and procedure for reporting any discrimination or harassment complaints;
    • reporting any complaints of discrimination or harassment; and
    • following renewal or reapplication requirements.
  • Employer resources and recognition given to affinity groups, including:
    • approval for membership and meetings;
    • use of the employer’s facilities and technology, including conference rooms, bulletin boards, equipment, email, and intranet; and
    • employer funding and expense reimbursement for events such as lunch-and-learns, guest speakers, seminars, and sponsorship opportunities.
  • Other policies to which affinity groups and their members are expected to adhere, including:

For examples of additional policies and procedures employers may reference in their affinity group policy, see Employee Handbook Toolkit.

Protecting against legal claims

To protect the employer against discrimination, harassment, and retaliation claims, employers should:

  • Ensure that membership in any affinity group and attendance at any affinity group meetings or activities is voluntary.
  • Prohibit affinity groups from making membership or participation in affinity group activities exclusive. Rather, all employees should be permitted to join or participate in any affinity group regardless of an employee’s race, sex, national origin, religion, age, sexual orientation, or other protected category.
  • Be consistent across protected categories when deciding which affinity groups to recognize. For example, employers should not approve affinity groups for certain religious groups while failing to recognize affinity group status for other religious groups; instead, employers could prohibit any affinity group that promotes or advocates any religious position.
  • If choosing to prohibit affinity groups based on certain protected characteristics (for example, religion), ensure that managers and supervisors understand that this exclusion does not render the protected class any less significant regarding other employment decisions.
  • Do not treat members of certain affinity groups differently than members of other affinity groups when making employment decisions (for example, regarding time off to attend meetings).
  • Direct affinity group leaders to remind their members of the employer’s anti-harassment policy and complaint procedure and to report any complaints or concerns about conduct that may violate the policy.
  • Avoid taking any adverse employment action against employees for conduct in the context of an affinity group that may be considered protected activity under federal or state anti-retaliation laws. (See Discrimination and Harassment Claims and Retaliation Claims.)

To avoid FLSA liability for unpaid wages for nonexempt employee time spent in affinity group meetings or activities, employers should:

  • Ensure this time is not compensable under the FLSA by:
    • requiring all affinity group meetings and activities to be held outside employees’ regular working hours;
    • making attendance voluntary;
    • ensuring that employees do not experience (and are not lead to believe they will experience) any adverse employment action for non-attendance; and
    • ensuring that employees are not actually performing work for the employer during this time.
    • Compensate employees for this time if:
    • the meeting or other activity is held during the employee’s regular working hours;
    • the employee is required to attend the meeting;
    • the meeting is directly related to employees’ job (for example, the meeting is designed to make employees handle their specific jobs more effectively); or
    • the employee performs productive work for the employer during the meeting. (See Wage and Hour Issues.)

To avoid potential ULPs under the NLRA, employers should:

  • Make clear that affinity groups do not represent employees or make proposals to the employer regarding the terms and conditions of their employment (see Unions and Collective Bargaining).
  • Not restrict employees from discussing topics in affinity groups that could be deemed protected concerted activity for mutual aid or protection (see Protected Concerted Activity).

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