Author(s): Eric V. Hall
Published: 06/01/2007
Ninety percent of Fortune 500 companies have "affinity groups." They are seen as a logical outgrowth of corporate diversity training and are typically found in companies with more than 100 employees. Companies value affinity groups for various reasons, such as boosting employee morale, increasing productivity, attracting and retaining minority employees, and as a marketing tool for business development.
Companies often sanction or encourage these groups by allowing them to use company equipment, facilities, and other resources. Some companies also provide financial support to recognized affinity groups. However, before employers develop an affinity for these groups in the workplace, they must understand the legal risks involved when encouraging and supporting them.
What are the legal risks of affinity groups?
Affinity groups have a variety of names — such as "networking," "social identity," "advocacy," "focus," "support," and "resource" groups — but they all arise in much the same way: they are formed voluntarily by employees to address issues of common interest relating to a particular characteristic commonly associated with diversity, such as race or gender. Affinity groups create two primary legal risks.
The first arises under the National Labor Relations Act ("NLRA"), which 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." This applies to both union and non-union companies. An employer that encourages or sponsors affinity groups may be seen as "dominating" or "interfering" with a "labor organization," which is defined broadly to include virtually any type of employee group that "deals with" an employer concerning wages, hours, and working conditions. Accordingly, companies that have affinity groups should make clear that those groups do not "deal with" the employer with respect to the terms and conditions of their employment, even as the company may encourage individual members to bring forward complaints through normal company channels.
The second, and greater, legal risk is that of employment discrimination under Title VII of the Civil Rights Act of 1964, or state or local anti-discrimination laws. Like its state and local counterparts, Title VII forbids discrimination "because of an individual’s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Since most affinity groups are organized around classifications protected by Title VII or state or local anti-discrimination laws, like race, gender, sexual orientation, or religion, there is a substantial risk that company decisions regarding affinity groups will be perceived as violating anti-discrimination laws.
What rules apply to religious affinity groups?
A case involving General Motors and one of its employees from Indianapolis, Indiana, illustrates this point. In Moranski v. General Motors Corp., 433 F.3d 537 (CA7 2005), John Moranski, a born-again Christian, submitted an application to start an affinity group called the "GM Christian Employee Network." At the time, GM had nine other affinity groups:
- People with Disabilities,
- GM African Ancestry Network,
- GM Plus (for gay and lesbian persons),
- North American Women’s Advisory Council,
- GM Hispanic Initiative Team,
- GM Asian Indian Affinity Group,
- GM Chinese Affinity Group,
- GM Mid-East/South-East Asian Affinity Group, and
- Veterans Affinity Group.
Unlike Intel and Texas Instruments, which permit religious affinity groups, GM prohibited groups that "promote or advocate particular religious or political positions." Consistent with this policy, GM never had any affinity groups associated with any religion or denomination within a religion, or with groups promoting a religious position, such as agnostics, atheists, or secular humanists.
Court rejects discrimination claim
Mr. Moranski nonetheless sued under Title VII, arguing that GM’s policy discriminated against his Christian religion. A unanimous panel of the Seventh Circuit rejected this position, stating that since GM treated all religious affinity groups the same — by prohibiting them — there was no "discrimination," i.e., disparate treatment because of religion.
The court rejected Mr. Moranski’s argument that it consider "cross-categorical comparisons," that is, that there was a violation of Title VII because other protected classifications, like race and gender, received preferential treatment over religion. It also rejected his contention that in this context, Title VII protects a person’s "main identifying characteristic." Rather, the court reaffirmed that "the central question in any employment-discrimination case is whether the employer would have taken the same action had the employee been of a different race (age, sex, religion, national origin, etc.) and everything else had remained the same." The court found that GM would have treated Mr. Moranski the same way and denied his application for a religious affinity group no matter what religious position he might have been advocating. Thus, there was no "discrimination" and no Title VII violation.
Nonlegal risks of affinity groups
In terms of nonlegal risks, some employers have found that affinity groups polarize employees rather than bring them together, as employees in majority classifications may feel that minorities and women are receiving preferential treatment. Additionally, employers must ensure that affinity group meetings do not devolve into gripe sessions. While employees have the legal right under the NLRA to come together to discuss issues regarding their wages, hours, and working conditions, there is concern if affinity group meetings become bash sessions against the company. Further, employers sponsoring affinity groups should formulate guidelines that ensure that complaints are channeled through the organization's normal complaint resolution process, so that they may be appropriately handled.
Practical Significance
Affinity groups are currently popular in corporate America. Before deciding whether to support such groups, an employer must consider whether the employee-relations benefits outweigh the risks. Assuming they do, drafting careful guidelines is essential to minimize the legal risks under the NLRA and Title VII. Government employers must also consider constitutional issues, since they typically provide more protection for government employees than that afforded to private employees under federal and state anti-discrimination statutes.
Eric V. Hall is a partner in RJ&L's Colorado Springs office, where he practices in the firm's Religious Institutions and Labor and Employment Law Groups. Prior to joining RJ&L, Mr. Hall served the Honorable David M. Ebel of the U.S. Court of Appeals for the Tenth Circuit as a law clerk. He can be reached at 719-386-3030 or by e-mail at ehall@rothgerber.com.