In an effort to enhance workplace diversity, virtually every major employer in the country has fostered employee networking and affinity groups for minority employees. In fact, recent studies indicate that more than 70 percent of employers have one or more affinity groups in the workplace. While few would dispute that such groups do help employers attract and retain employees, there are potential risks associated with such groups because, by definition, they highlight differences between employees and focus attention on sensitive issues like race, gender and ethnicity. A recent district court decision from Illinois, Sinio v. McDonald’s Corporation, also suggests that the presence of a minority networking group can be evidence of unlawful race discrimination against non-member employees.
The allegations in Sinio are not the typical failure-to-promote allegations involving a minority employee claiming to have been passed over in favor of a Caucasian employee. Rather, the plaintiff in Sinio was an Asian-American who alleged that she was passed over for promotion in favor of African-American employees by supervisors who were members of an internal networking program for African-American employees. Although the plaintiff’s immediate supervisor was Caucasian, her second and third level managers were both African-American.
After discovery, McDonald’s moved for summary judgment on Sinio’s discrimination claims arguing that, among other things, Sinio had failed to establish a prima facie case of discrimination and also failed to present sufficient evidence to show that its legitimate, nondiscriminatory reasons for its actions were pretextual. The district court denied summary judgment on Sinio’s failure to promote claims. Although the court did not go into great detail about what particular evidence it found most compelling, the court noted that “[a] large part of Sinio’s theory in this case appears to be that African-American supervisors …, all of whom were members of a networking program for African-American employees, favored African-Americans and discriminated against Sinio.” Additionally, in reciting the facts of the case, the district court emphasized that it “must also be noted that all of the African- American employees who worked in accounting …, regardless of rank, were members of an African-American networking organization designed to help African-American employees achieve promotions.” Thus, while the court did not openly criticize the practices of the networking group, it is apparent that the presence of the African-American networking group played at least some role in the court’s decision to deny summary judgment.
The decision in Sinio represents only one judge’s view of a particular factual record and certainly should not be read to require employers to abolish affinity groups and networking programs altogether. However, the Sinio case is consistent with a series of recent decisions from federal courts suggesting that other voluntary affirmative action efforts by private employers can be evidence of discrimination. Accordingly, employers should review their current diversity practices and educate their management teams about the proper role of affirmative action in the private employment sector. In assessing the role of affinity groups in the overall diversity program, employers should consider the following:
• Affinity groups should be formed voluntarily, not dictated by management, and individual employee participation in such groups must be voluntary.
• Meetings of affinity groups should be open to all employees, not just employees of a particular race, gender, ethnicity, etc.
• Employers should not formally track employee participation in such groups and participation (or lack thereof) must not be part of any employee’s evaluation.
• Affinity groups should not have authority to make employment decisions, determine employer policy or intervene in particular employee disputes.
• Affinity groups should focus on fostering dialogue, channeling feedback to management, communicating corporate objectives and improving the overall work environment.
• Written “mission statements” should be developed and then reviewed by legal counsel to ensure that there are no statements that could be viewed as evidence of favoritism or discrimination against any other group of employees.
• Human resources should periodically monitor the activities and written agendas of affinity groups to confirm that the group is complying with employer policy and pursuing approved business objectives.
• Employer funding for such groups should be equal to avoid suggestions that the company favors one group over another.
The suggestions listed above are only a handful of the best practices for developing employee networks and affinity groups. Our Labor and Employment Group professionals can work with you to implement employee affinity groups as part of a coordinated approach to enhancing workplace diversity.