From a legal standpoint, ERGs raise two common issues: the use of social media and discrimination concerns. 

 

Use of Social Media 

The first issue may arise when employers offer communication options such as messaging services, social media spaces or intranet platforms where employees can engage in ERG discussions. These forums provide accessible communication for members, which is especially beneficial for staff spread across locations or working remotely. Yet these forms of communication can cause problems if employees act inappropriately, perhaps by posting negative comments or sharing others' posts without permission.

It can be difficult to assess what is inappropriate conduct and what behavior an employer may regulate. Employers that host these types of forums must bear in mind that Section 7 of the National Labor Relations Act, which applies to unionized and nonunionized nonsupervisory employees in the private sector, entitles workers to engage in concerted activity for their mutual aid or protection. The National Labor Relations Board has held that employees communicating via company e-mail or on social media may be covered by Section 7's protections.

Employers should be mindful about restricting or removing employee communications or disciplining employees based on their posts. If an employee posts a disparaging comment about the employer and the employer deletes the post, employees may claim that the company censored their protected Section 7 communications.

Employers may maintain a policy to remove posts or limit communications that are obscene, violent, defamatory or harassing of a protected category of worker.

Discrimination Concerns

ERGs can, at times, create friction in the workplace. Employees who do not feel welcome to join an affinity group or to attend its events may feel excluded—or even threatened—by this employer-backed organization. Communication is key. Employers with ERGs should be sensitive and responsive to these concerns to ensure that all employees feel heard and that anti-discrimination laws are followed. Title VII of the Civil Rights Act of 1964, for example, prohibits discrimination on the basis of sex, race, religion and national origin.

Some employers have faced class-action civil rights lawsuits filed by white male employees alleging that they were fired—or suffered some other adverse action—because of their gender and race. Some plaintiffs in such lawsuits have pointed to corporate diversity initiatives, like ERGs, as evidence of the discrimination they purportedly faced at the office. Although reverse discrimination claims are relatively rare and largely unsuccessful, employers should exercise forethought when implementing diversity initiatives. 

Recommended Steps

Employers can take several steps to support diversity initiatives and limit risk. At the outset, affinity groups should be carefully structured to encourage sharing and mentorship without devolving into platforms for negativity. Some employers have found that an application process and charter requirement for ERGs clarifies the purpose of the group and helps participants focus on clear goals.

Employers may also want to provide tasks for affinity groups to tackle, like identifying ways to improve the workplace. Keep in mind that any limits on ERG creation must be applied to all groups in a category. For example, a ban on religious groups must apply to all groups with religious leanings.

In addition, management should hold some sort of leadership position on affinity groups. A management representative, for example, may serve as a sponsor or liaison between group members and company leaders. The liaison can help steer discussions toward stated goals and business initiatives rather than allowing the group to focus on complaints.

Management can also build a healthy foundation for ERGs by providing anti-discrimination training, including implicit bias training, for all staff. This training can educate employees about the benefits of diversity and about everyone's role in counteracting their own biases.

Benefits of Affinity Groups

While ERGs require planning and ongoing participation, employers find that the benefits are well worth the effort. Affinity groups can help employers attract more diverse candidates, reduce turnover and increase employee morale.

Moreover, multiple studies have found that companies are likely to have above-average financial returns if they fall among the top quartile of their peers for diversity by race, ethnicity and gender.

In short, affinity groups, managed wisely, can serve to attract and retain top talent, increase the bottom line, and build a healthy and thriving workplace culture.

Reprinted with permission from SHRM.org. ©2019. All rights reserved.