In an era when the first woman and first African American in U.S. history went head-to-head for the Democratic presidential nomination and the year in which the first African American President of the United States has been elected to office, diversity definitely is a vital topic. Workplace diversity training has been around for some time, but is growing in importance as the demographics of the working population continue to evolve.
During its emergence in 1980s, diversity training focused on increasing the understanding of how the influx of women, people of color, and new immigrant groups impacted the workforce.
By the 1990s, diversity training emphasized creating an inclusive workplace, where all human differences were respected. Today, corporations, government organizations, and private law firms all are learning the limits of merely raising awareness and are realizing that training needs to build skills, moving participants beyond just learning about assumptions around human differences to examining the behaviors that influence how people interact.
So, diversity today relates to traditional traits such as gender, age, language, ethnicity, cultural background, disability, sexual orientation, and religious belief. But diversity today also refers to the ways we are different in other respects such as educational level, job function, socio-economic background, personality profile, marital status, and family or other responsibilities.
I. Workforce Diversity is Happening1
According to the U.S. Department of Labor, by 2050, the U.S. population is expected to increase by 50 percent, and minority groups will make up nearly half of the population. Immigration will account for almost two-thirds of the nation’s population growth, and the population of older Americans is expected to more than double. One-quarter of all Americans will be of Hispanic origin. Almost one in ten Americans will be of Asian or Pacific Islander descent, and more women and people with disabilities will be on the job.
The statistics on race diversity show that white, male participation in the workforce will decrease as compared to female and minority workers. Indeed, while the total U.S. workforce is projected to grow 8.5 percent from 2006 to 2016, the white, male workforce is only projected to increase by 5.5 percent.
II. Retaining Talented, Diverse Employees: Employee Resource Groups
One of the best ways to maximize the diversity of your legal workforce is through employee resource groups. These groups are employee-formed organizations that address issues of common interest (e.g., women’s initiatives) within the greater organizational setting. Whether called networking groups, affinity groups, advocacy groups or support groups, they all serve the valuable purpose of harnessing organizational diversity to the greater benefit of the workplace. Employee resource groups are official in the sense that they are employer-sanctioned and are often provided with company or firm resources, including, in some instances, financial support. They often are formed to provide a mutually beneficial relationship for the employer (helps boost employee morale) and for employees (share experiences and expertise, develop mentoring opportunities, foster community involvement, network with senior management, and learn career-building skills).
Some employee resource groups at major corporations include: GM Plus (People Like Us) (Gay and Lesbian Affinity Group); YP—Kellogg’s Young Professionals; FIN—Ford Interfaith Network; and Aetna—Telework Community ERG. These groups all are listed on the companies’ Web sites, presumably with a goal of improving their public image by supporting community outreach efforts.
A. Institutional Benefits
Sponsoring employee resource groups can improve recruitment by sending a signal to diverse employees that a company or firm is doing more than paying lip service to valuing diversity. Subject to certain legal pitfalls, to the extent that an organization embraces employee resource groups such as women’s initiatives, employees also may understand that the organization values the insight that comes with having a different perspective that diversity can provide. Furthermore, women’s initiatives in law firms can provide an outlet for participating female attorneys to openly discuss workplace concerns in a supportive environment.
In a global market, the search for talented employees can span continents. Potential employees of different ethnic backgrounds may be apprehensive about committing to an employer who appears to have little or no interest in creating an atmosphere that values diversity amongst its employees. Employee resource groups can serve as hard proof of an employer’s commitment, and may assist in retaining talented individuals who might otherwise seek employment elsewhere.
B. Legal Pitfalls: Exposure to Discrimination Allegations
While a properly executed employee resource group program is clearly legal, an employer must be careful to avoid discrimination claims. Employee resource groups have the potential to serve as evidence of discrimination against non-member employees, and therefore might serve as proof of a Title VII violation.
Because disparate treatment is the touchstone of a Title VII inquiry, a court facing a Title VII claim will ask “whether the employer would have taken the same action had the employee been of a different race (color, sex, religion, national origin) and everything else had remained the same.2 Therefore, if the employer allows formation of one employee resource group within a protected class, it must allow the formation of other employee resource groups within that same class.
Moranski v. General Motors Corporation serves as a good illustration of this point, wherein the 7th Circuit upheld GM’s affinity group program.3 While GM recognized nine different affinity groups at the time, the corporate policy did not allow groups that “promote or advocate particular religious or political positions.” GM subsequently disallowed an employee to form a Christian affinity group, and the employee sued for religious discrimination under Title VII. The court held that, although GM allowed some affinity groups, the policy to prohibit certain affinity groups did not run afoul of Title VII. The court reasoned that GM would have treated any religious group similarly when applying for affinity group status, and there was therefore no disparate treatment of the Christian employee.
1. Exposure to Compensable Time under the Fair Labor Standards Act
Section 785.44 of the FLSA provides:
Time spent in work for public or charitable purposes at the employer’s request, or under his direction or control, or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside the employee’s normal working hours is not hours worked.
The Wage and Hour Division has explained that “volunteer activities” must be truly voluntary and any coercion or pressure, whether direct or indirect by the employer to participate in a program outside of duty hours would negate the voluntary nature of the program.4In addition, if the employees were to perform volunteer work during normal working hours, with prior approval, they would need to be compensated for this time.5
2. Exposure to National Labor Relations Act Violations
Section 157 of the NLRA gives employees the right to organize, “to form … labor organizations to bargain collectively … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” In addition, §152 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” (emphasis added).
Whether an affinity group is an organization subject to the NLRA turns on if the group “deals with” the employer. Such dealings must be “bilateral, evidenced by a pattern in which a group of employees, over time, makes proposals to management, management responds to these proposals by acceptance or rejection by word or deed, and a compromise is not required.” Hence, formality of communication between the employer and affinity group seems to be required for the NLRA to apply.
Further, an affinity group may fall within a “safe haven,” not subject to the NLRA. These include brainstorming committees or information sharing committees (committees that merely serve as a conduit to management, passing employee suggestions onto the employer without altering or commenting upon the suggestions). So if an affinity group has a designated purpose, such as recruiting employees of a certain background, the NLRB will likely treat it as a team that is fulfilling a management function, thereby falling within a safe haven.
3. Best Practices
• The procedures for applying for employee resource group status should be clearly articulated.
• Employee resource groups should be voluntarily formed by employees.
• Permissible and impermissible employee resource groups should be clearly delineated.
• Employees should understand the place and purpose of employee resource groups in an organization and in the importance of fostering diversity.
• Employee resource group meetings should be open to all, regardless of purpose.
• Employee resource groups should have a clearly defined business purpose.
• Employees should not use employee resource groups as vehicles to discuss, negotiate, or bargain over the terms or conditions of employment. Given the breadth of the NLRA, employers should strive to ensure that employees do not use affinity groups as vehicles for expressing grievances, labor disputes, etc.; otherwise the affinity group may be perceived as a union and treated accordingly.
While there are some legal considerations, employee resource groups can serve as a win-win for both employers and employees. A diverse workforce has become a business imperative given recent marketplace trends. Today, African Americans, Asians, Latinos and Native Americans in the U.S. hold close to $2 trillion in buying power.6 By 2050, these groups will make up more than half the population of the United States. Accordingly, the people joining an organization, just as the clients of the organization, want to see change reflected in the faces of the people who work there.