Legal Traps Associated with Affinity Groups

Transcription

1 Legal Traps Associated with Affinity Groups Jennifer Kroll, Martin & Bonnett P.L.L.C. Heidi Sharp, Burgess, Sharp & Golden PLLC Anne-Marie Vercruysse Welch & Emory D. Moore, Jr., Clark Hill PLC The use of affinity groups is growing in popularity amongst employers as a means of creating work environments that are more attractive to diverse groups of employees. An affinity group is an association of individuals organized for the purpose of advancing the interests of a specific demographic. For example, a group of people interested in promoting LGBTQIA interests can come together and form an affinity group that promotes LGBTQIA interests. Many employers have developed affinity group programs within their organizations wherein they create certain affinity groups and/or allow their employees to create certain affinity groups. Additionally, some employers may allow groups to meet on their premises or use facilities during working hours for the support or discussions of issues which are alike to those which are part of affinity groups. For example, Employer X might develop an affinity group program in which Employer X will provide support for approved affinity groups. In accordance with the program, Employer X might agree to recognize an LGBTQIA group. Additionally, Employer X might provide members of that group with one hour of paid time off each month to attend group meetings and pay for catering at the group meetings. By engaging in such activity, Employer X might hope to attract more LGBTQIA employees, create a better work environment for LGBTQIA employees, and signal to clients that Employer X is a progressive and inclusive organization. Additionally, the employer may allow an LFBTQIA organization to hold meetings or discussions on their premises for the attendance of employees, even when an actual affinity group is not established within the employer s organization. Given that affinity groups are often built around protected characteristics (such as race, sex, age, or disability), making decisions with respect to affinity groups often involves an employer making decisions that involve a protected characteristic. Decision making with respect to affinity groups comes with the inherent risk of violating laws that prohibit discrimination on the basis of protected characteristics. The case law addressing the interplay between affinity groups and anti-discrimination laws is sparse, which may result in the advancement of a variety of claims that test the bounds of the law. This article discusses legal traps associated with affinity groups. I. Unequal Treatment a. Unequal Treatment of a Group as a Whole The very first potential pitfall employers could face in dealing with affinity groups is deciding which groups will be officially sanctioned by an employer and which will be denied affinity group status with an employer. If an employer decides to grant a group of deaf employees affinity group status, it might be liable for unlawful discrimination if it then denies a group of employees with diabetes affinity group status. For example, in 1999 General Motor ( GM ) instituted an affinity group program which made company resources available to groups officially recognized by GM. GM recognized nine affinity groups: People with Disabilities, the General Motors African Ancestry Network, GM Plus (for gay and lesbian persons), the North American Women's Advisory Council, the GM Hispanic Initiative Team, the GM Asian Indian Affinity Group, the GM Chinese Affinity Group, the GM Mid-East/South-East Asian Affinity Group, and the Veterans Affinity Group. GM provided that Membership must be voluntary and open to all current, salaried, full-time employees who share a group s goals. In 2002, an employee submitted an application requesting that GM recognize the Christian Employee Network as an affinity group. GM 1

2 rejected the request and the employee sued, claiming the rejection constituted unlawful religious discrimination. The Seventh Circuit rejected the claim because GM had a policy prohibiting any affinity group that promotes or advocates a religious position. The Seventh Circuit found that GM's Affinity Group program treated all groups with a religious position equally by rejecting them all. Thus, the plaintiff s claim of unlawful discrimination failed. If GM did not have a written policy, however, the outcome might have been different. b. Unequal Treatment of Individual Members of a Group Treating an affinity group s members less favorably than others can be considered unlawful discrimination on the basis of whatever protected characteristic around which the less favorably treated group is centered. For example, in Flood v. Bank of Am. Corp., 780 F.3d 1 (1st Cir. 2015), a customer service worker claimed that Bank of America discriminated against her because of her bisexuality in violation of the Maine Human Rights Act. Specifically, the plaintiff alleged that other customer service workers were allowed to take breaks to attend various affinity group meetings, but that she was not allowed to take breaks to attend the Bank s LGBT affinity group meetings. The First Circuit found that the fact that the plaintiff was not allowed to take breaks to attend LGBT affinity group meetings while others were allowed to attend other affinity group meetings could be considered a factor contributing to a hostile work environment for the plaintiff. II. Discrimination by the Affinity Group Itself By their very nature, affinity groups often deal with legally protected characteristics and thus come with the inherent risk of unlawful discrimination. Under the guidance of counsel and human resources personnel, employers are generally aware of their duty to avoid unlawfully discriminating against employees. Affinity groups, however, generally do not have the benefit of counsel or human resources professionals. Thus, discrimination coming from an affinity group itself is a real risk regarding which employers must be aware. For example, in Sinio v. McDonald's Corp., No. 04 C 4161, 2007 WL , at *1 (N.D. Ill. Mar. 19, 2007), all of the African-American employees within McDonald s Corporation s Real Estate Franchise ( REF ) account group were members of an African-American networking organization designed to help African-American employees achieve promotions. An Asian- American employee in the REF filed a lawsuit against McDonalds, alleging that McDonald s violated Title VII of the Civil Rights Act of 1964 when members of the networking group received better treatment by African-American managers than non-members. The plaintiff s claim survived summary disposition. An affinity group might also discriminate by only allowing employees of a certain demographic to join their group. Simply because an affinity group is centered around a particular demographic, however, does not mean the group can be discriminatory in who it allows to be a member. Thus, the affinity group being an employer-sanctioned group, the employer could be held liable for the group s unlawful discrimination. An affinity group might also engage in unlawful discrimination by promoting discrimination against others, which could result in the employer being held liable for any discrimination from the affinity group and/or its members and result in a need for action by the employer. For example, an employer might have a group created to further the interests of single dads. In practice, however, the group might be perceived as promoting discrimination against divorced women. If any adverse employment action is taken by any member of the single dads group against a divorced woman, the employer might find itself being held liable for unlawful discrimination on the basis of sex and/or marital status. Likewise, if the 2

3 rhetoric escapes the dads group meetings and enters the workplace, the employer could be liable for hostile work environment harassment. III. Potential Employer Violations for Interference with Protected Rights under the National Labor Relations Act and Other Laws Claims under the National Labor Relations Act can also arise as a result of employee affinity group activity. One such potential claim against an employer can also arise from disciplining employees for participation in the activities of an affinity group outside of work. Along with the increasing popularity of employers use of affinity groups to attract and retain diverse talent and to project an image of progressivity, employers have been increasingly more involved in regulating the conduct of their workers while off-duty and off the premises. Specifically, many employers have begun disciplining employees for participating in the activities of controversial affinity groups. For example, recently several employers were called upon to discharge their employees who were photographed with torches at the Unite the Right rally at Nameless Field in Charlottesville, Virginia. Disciplining employees for participating in affinity group activities, however, can be unlawful depending on the particular circumstances. For example, Section 7 of the National Labor Relations Act ( NLRA ) (which applies to unionized and non-unionized public and private employers) makes it unlawful for an employer to prevent employees from joining together to advance their interests as employees or engaging in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Thus, if an affinity group s activity can be considered a discussion or protest of working conditions or the terms of employment, disciplining an employee for participating in the activity might be a violation of Section 7. For example, fast food workers who have participated in the Fight for Fifteen demonstrations are likely covered by the NLRA because they are advocating for higher wages and better working conditions, even though they are not unionized. Therefore, employers have to be careful to consider what the group motives in protest or participation in, before disciplining or taking adverse action against an employee for participation. The NLRB has held that an employer presumptively may not prohibit employees from using the company s electronic communications in the workplace such as to send out communications that relate to statutorily protected communications during nonworking time. See Purple Communications, Inc. 361 NLRB No. 129 (2014). An employer can rebut that presumption if special circumstances make its restrictions necessary to maintain production and discipline. In Purple Communications, the NLRB held that the employer s policy against using internet, voic and systems for Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company and for Sending uninvited of a personal nature: were presumptively overly broad and remanded the case back to the Administrative Law Judge to determine if any special circumstances justify a particular restriction. The Board held that with respect to any particular restriction on business imposed by the employer, the employer must demonstrate the connection between the interest it asserts and the restriction. The mere assertion of an interest that could theoretically support a restriction will not suffice. Further, before disciplining an employee or taking adverse action, an employer should consider whether the affinity group really reflects on the reputation of the employer through the employee s participation. Meaning, if an employee is not a high-ranking official, and participates only in activities outside of work and their participation causes no disruption to the work environment, even if the employer finds their participation distasteful, it may not require taking any action against the employee. However, in cases where the participation is in known groups which promote violence or hate rhetoric, employers have been known to punish employees who may jeopardize the company s reputation. The recent situation in Charlottesville, Virginia serves as a prime example. In that case, many of the participants of the Unite the Right rally were named on social media alongside with their personal 3

4 information and employers. Social media demanded their termination. Many of those employers terminated those employees upon learning of their support and participation in the rally at the risk of public outcry and possible boycott against their organizations. Moreover, some states such as California have laws limiting an employer s ability to regulate offduty conduct. Furthermore, some employment agreements and collective bargaining agreements expressly set forth the limits of an employer s ability to regulate off-duty conduct. Finally, public employers also are at risk of violating employees Constitutional right to free speech by regulating their participation in affinity group activities. The Constitutional guarantee of free speech is a topic worthy of a lengthy discussion. Notably, where an employee s affinity group activity, whether on or off-duty, is threatening or intimidating to other employees, employers might be able to successfully defeat a claim of discrimination for disciplining employees engaged in the threatening or intimidating activity. For example, in Mahon v. Am. Airlines, Inc., 145 F. App'x 634 (10th Cir. 2005), as a part of its diversity program, American Airlines encouraged the formation of affinity groups, termed Employee Resource Groups ( ERG ). As a part of its diversity program, American Airlines hosted a diversity fair for its employee groups. At the fair, members of the Caucasian ERG distributed a pamphlet created by a member that allegedly contained white supremacist rhetoric. American Airlines conducted an investigation of the member s creation and distribution of the pamphlet (and wearing of a t-shirt promoting a novel containing white supremacist rhetoric) and terminated his employment as a result of the investigation, stating that he was terminated for violating company policy prohibiting threatening or intimidating behavior toward other employees and conduct detrimental to other employees and American Airlines. The member filed a Section 1981 claim alleging his termination was unlawful discrimination on the basis of his race. The U.S. District Court for the District of Oklahoma dismissed his complaint for failure to state a claim, and the Tenth Circuit affirmed the dismissal. See, also Ervington v. LTD Commodities, LLC, 555 F. App'x 615, 618 (7th Cir. 2014) ( Commodities was not required to accommodate Ervington's religion by permitting her to distribute pamphlets offensive to other employees. ), Another potential claim that can arise is on the opposite end of the spectrum, where an employer sponsors and promotes affinity group involvement and participation in the workplace. Over-involvement and promotion of affinity and other groups might lead to a charge the employer is violating the NLRA s prohibitions against company domination of a labor organization in violation of 8(a)(2) of the Act. 29 U.S.C. 152(5). Section 2(25) of the NLRA broadly defines a labor organization 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, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Section 8(a)(2) provides that it is unlawful for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: 1 In the case of Electromation, Inc., 309 NLRB 990, 992 (1992), the Board held that a company s Action Committees that 1 The Act provides an exception for permitting employees to confer with the employer during working hours without loss of time or pay. 4

5 were organized by the employer to make recommendations on specified employee issues were labor organizations created by and unlawfully dominated by the company. The Board held that [a]ny group, including an employee representation committee, may meet the statutory definition of labor organization even if it lacks a formal structure, has no elected officers, constitution or bylaws, does not meet regularly, and does not require the payment of initiation fees or dues. Id. at 994. The Board distinguished between organizations whose structure and function was determined by employees, which was not unlawfully dominated by an employer even if the employer has the potential ability to influence the structure or effectiveness of the organization and those whose structure and function are essentially determined by management, as... and whose continued existence depends on the fiat of management. The Board held when the impetus behind the formation of an organization of employees emanates from an employer and the organization has no effective existence independent of the employer's active involvement, a finding of domination is appropriate if the purpose of the organization is to deal with the employer concerning conditions of employment. Employers need to be careful that their activities in promoting affinity groups do not cross the line and create unlawful employer dominated labor organizations. IV. Takeaways 1. If an employer decides to implement an affinity group program or otherwise allow affinity groups to develop within its organization, the employer should have in place a written affinity group policy that applies equally to all affinity groups and should take care that participation of these groups in the workplace does not amount to unlawful domination of a labor organization. 2. Employers should advise affinity groups of their duties to avoid unlawful discrimination and must monitor affinity groups to ensure the prohibition on discrimination is adhered to. 3. Before disciplining an employee for participation in affinity group activities, an employer should (i) thoroughly investigate the conduct to avoid premature or inaccurate conclusions, and (ii) ensure that the employer has the legal ability to regulate the conduct. Moreover, if an employer desires to have the ability to regulate off-duty conduct, it should create a written policy regarding the same and ensure that it is applied in a non-discriminatory manner. 4. Employers should consider whether an employee s on-duty or off-duty conduct is an expression of their rights under the NLRA before deciding whether to discipline or terminate an employee for their participation in a protest or other activity. 5. Public employers must follow additional guidelines in determining whether to take action against an employee for affinity group participation, both inside and outside the working hours, to ensure that the First Amendment and other Constitutional protections are not violated