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.
That’s because an ERG likely would be deemed a term, condition, or privilege of employment. If the ERG has “some value,” then discriminatory exclusions would seem to cause “some harm,” Segal said.
“Last year, the Supreme Court ruled in Muldrow v. City of St. Louis that, if there is discrimination relative to a term, condition, or privilege of employment, the employee need prove only some harm,” he explained.
Before this ruling, some appeals courts had imposed a higher burden, such as significant harm.
“Prior to Muldrow, there was real risk in limiting an ERG to members of a protected group,” he said. “After ...
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