In the wake of the Supreme Court’s Students for Fair Admissions college and university affirmative action decision last month, some employers are questioning the continuing legality of their Diversity, Equity, and Inclusion (DEI) programs. A group of state attorneys general recently sent a letter to Fortune 100 companies reminding them that federal and state laws prohibit individual employment decisions that are based on membership in a protected classification. A senator sent a letter to large U.S. law firms declaring that DEI programs which include quotas or hiring directives expose the firms to legal action.
One question that has followed these developments involves whether companies face legal risk if they sponsor or allow employee affinity groups. An affinity group includes workers with a common interest, such as the success of traditionally underrepresented persons like women or minorities. These employees form groups to foster networking, mentorship, and other measures to advance the interests of those persons in the workplace. Some groups are actively encouraged and sponsored by the company, while others are largely independent of the employer’s DEI efforts.
Employee affinity groups are not addressed in the Students opinion. However, federal and state antidiscrimination laws could apply to groups that exclude employees based on a protected classification, or those that are used by companies to influence individual employment decisions. While there are no legal impediments to the concept of an affinity group, companies that recognize or encourage them should establish clear guidelines and protocols.
First, the affinity group should be open to all workers whether or not they belong to the protected class that is the basis for the group. Some proposed groups may be inappropriate, such as those based on political affiliations that could cause conflicts in the workplace. Next, the company should establish clear guidelines regarding the resources that will be made available to the groups, policies governing their operations, and compliance with all applicable EEO and other company rules.
Membership in or recommendations from the affinity group should not influence individual hiring or promotion decisions. One of the group’s goals should be to increase the qualified pool of underrepresented employees eligible for advancement within the organization. In all cases, employers should not make a snap decision to recognize or prohibit employee affinity groups. The creation of such groups requires careful thought and planning as to their purpose, their connection to the company, and the consistency of their activities with legal and business needs. While corporate DEI efforts may be subject to increased scrutiny following Students, employers retain the ability to continue appropriately constructed and implemented diversity efforts.
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