Over the past several years, corporations have implemented various strategies aimed at supporting employees from diverse backgrounds. One such strategy is the use of internal "affinity groups." Affinity groups are typically formed based upon a common aspect of social identity, such as a protected characteristic like sexual orientation, gender, race, or national origin. Most employers and employees believe that their workplace benefits from increased diversity awareness. However, a recent case from the United States District Court for the Northern District of Illinois demonstrates that affinity groups must be properly structured so that they do not provide legal fodder for employees who challenge a corporation's employment actions.

In Sinio v. McDonald's, the plaintiff was an Asian American accountant for McDonald's Corporation. Sinio's immediate supervisor was Caucasian, while her second and third level managers were African American. Throughout Sinio's employment, McDonald's received complaints from its customers about her performance. Sinio advised her supervisors that her difficulties resulted from an uneven workload distribution, and requested that the workload be redistributed amongst the other two employees. According to Sinio, her supervisors refused to redistribute the workload, and she complained that this decision was discriminatory since the workload of the other two employees in her group — one of whom was African American and one of whom was Middle Eastern — was not as heavy. After placing Sinio on two successive performance plans, McDonald's terminated Sinio's employment. Sinio subsequently filed a lawsuit against McDonald's wherein she alleged, among other things, race discrimination and retaliation.

McDonald's moved for summary judgment on the race discrimination and retaliation claims, and the district court denied McDonald's motion on both claims. In its recitation of the facts, the district court noted, among other factors, that "all of the African American employees who worked in accounting...were members of an African American networking organization designed to help African American employees achieve promotions." In addition, in its analysis of the circumstantial evidence of discrimination, 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." After weighing all of the evidence presented by Sinio, including evidence pertaining to the timing of the scrutiny and criticism of Sinio's performance, the company's response to her complaints, and the redistribution of her workload after Sinio was replaced, the court held that Sinio had presented enough evidence to defeat summary judgment on her discrimination and retaliation claims. Although noting that there was "little doubt" that McDonald's could offer a legitimate reason for terminating her, the court stated that Sinio had met her burden of creating a genuine issue of material fact as to whether the reason was pretextual, and was entitled to bring her case before a jury. While it is unclear exactly how the supervisors' membership in the affinity groups factored in the court's decision, it is clear that the plaintiff raised the issue in an effort to support her claims.

Affinity groups can be a viable mechanism for employers to address the challenges of diversity in the workplace. But the key is to structure affinity groups in a way that achieves the group's goals without infringing on all employees' rights to a workplace that is fair and non-discriminatory. To this end, employers should consider implementing the following best practices as part of any affinity group recognition policy:

• Ensure that membership in each group is open to all employees who support a group's goals, even if the individual does not share the common characteristic that is the basis of the group;
• Membership in the group should be voluntary — employers should not pressure employees into joining a particular affinity group;
• Employers should not allow affinity groups to make any employment related decisions, including promotions, terminations, or hiring;
• Employers should ensure that there are established guidelines for and oversight of the groups, which are applied equally to all groups.

In short, affinity groups serve several important functions for corporations, including making diverse constituencies feel more welcomed and valued, and removing barriers to productivity within the workplace. Employers should continue to support and embrace diversity in the workplace, but do so in a way that fosters trust and personal responsibility in achieving the company's goals. If you have any questions about the use of affinity groups in the workplace, please contact a member of Schiff Hardin's Labor and Employment Group.