Some employers are concerned about the legality of employee resource groups (ERGs) in light of the diversity, equity, and inclusion (DEI) executive orders passed last week by President Donald Trump.
Also known as affinity groups, ERGs are employee-driven groups focused on a shared and often protected characteristic, life experience, or interest. But limiting participation in those groups to employees who are protected by a factor such as race, ethnicity, or gender was already seen as problematic by the courts and is likely to attract even more attention now as the administration targets various diversity initiatives.
“ERGs should either be open to all employees or any such limiting factor cannot be a Title VII [of the Civil Rights Act of 1964] factor,” said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City.
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Employee Resource Groups (ERGs) are safe havens for people from historically marginalized groups to empathize with each other's stories, have space for candid conversations about adversity, and to bring in allies to learn more about how they can be supportive. Ninety percent of organizations have ERGs, and they are not expected to dissolve. Even those that have adjusted their DEI strategies have kept their ERGs intact (e.g. Walmart). The subtle shift has been to engaging allies so that they're not excluding the dominant group.
Engaging allies (those that have power and can help address issues of exclusion) is a best practice as it often helps with the necessary resourcing and helping to address systemic issues. Including allies needs to be intentional. Successful ERGs set boundaries for allies to understand their role, educate allies on how best to contribute, and most importantly, how to take real action.
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ERGs are now also becoming business resource groups by aligning their work with key business goals or initiatives. This can involve ERGs supporting supplier diversity initiatives, serving as an internal focus group for marketing or ad campaigns, and supporting sustainability efforts, among other efforts.
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Employee resource groups, which spawned from the civil rights movement, have been a target for anti-DEI activists, like Starbuck and AFL, in their allegations of discrimination against White men in the workforce.
The potential for legal risks from the groups depends on how they were created, who is invited to join, and what is being offered, Lipnic said.
Most companies have been “sophisticated” about inviting allies to join, but if there is indication of workers being excluded from training or other offerings it could lead to a discrimination case — especially since the Supreme Court’s April ruling in Muldrow v. City of St. Louis, Lipnic said.
The court’s unanimous ruling opened the door for employees to bring discrimination claims without showing significant financial or other harm.
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Bloomberg Law | Sep 2024
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.
Can Employee Affinity Groups Result in Discrimination Claims?
Parker Poe | Jul 2023
Employers should encourage ERGs to collaborate with each other. Employees often have intersecting identities and ERGs can learn from one another by having regular check-ins. For example, two ERGs could co-sponsor events, or share each other’s event announcements. Collaboration between ERGs adds to the workplace community and further encourages widespread participation. ERGs should also collaborate with their executive sponsor and keep them informed on ERG efforts.
Leveraging the Power of Employee Resource Groups While Mitigating Risk: A Practical Guide
Husch Blackwell | Jul 2023
Example ERGs
City of Boston
Duke University
Emory University
Emporia State University
Experian
Harper College
Johnson & Johnson
Salem State University (including ERG mission statements & objectives)
The Ohio StateUniversity
Verizon
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