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Are race-based workplace “affinity groups” discriminatory?

Insight

Diversity concept 2 low res

Affinity groups (also known as “employee resource groups”) are voluntary, employee-led groups which, broadly speaking, are set up to cultivate a sense of belonging in the workplace. The members of such groups typically have shared identities, interests or experiences, in many cases which reflect protected characteristics under the Equality Act (2010) such as gender, disability, religion, or race. For the purposes of the Equality Act, and of this blog, “race” includes ethnicity and nationality.

Race-based affinity groups, in particular, are said to offer a support structure for minoritised ethnic employees to meet like-minded colleagues (in person or remotely) in order to advance common goals. The specific goals and the means by which they are achieved will be different for each affinity group.

For example, Amazon’s Black Employee Network is said to “connect… members with mentors and provides career and personal development workshops”, while PwC’s Jewish Network (which itself is one of five PwC faith networks) aims “to educate and…create an inclusive and diverse work environment so colleagues feel comfortable in a work setting”.

While the affinity groups at Amazon and PwC don’t claim to be exclusively for “Black” or “Jewish” employees respectively, other workplace affinity groups do sometimes exclude individuals who don’t share the “racial” characteristic that the group is representing. But by separating workers into race-based groups in this way, are organisations promoting diversity or divisiveness?

Do minoritised ethnic affinity groups constitute race “discrimination” against those who are excluded?

It is arguable that affinity groups set up to support minoritised ethnic employees exclusively can create a “safe space” for such individuals where they can truly speak freely about their hopes and concerns. This could be because minoritised ethnic employees might otherwise feel uncomfortable speaking up in front of colleagues who don’t share their protected characteristic(s). However, employers should take care when deciding to recognise affinity groups that exclude such colleagues, as this could constitute “direct discrimination” on grounds of race under the Equality Act.

According to section 13 of the Equality Act, direct discrimination happens when “A person (A) discriminates against another (B) if, because of a protected characteristic (here, ‘race’), A treats B less favourably than A treats or would treat others.” Using the example of an affinity group operating exclusively for black employees, the question will be whether a white employee might be able to argue that they have been “treat[ed]… less favourably” than a black employee, since the latter can access the affinity group but they cannot?  If the answer is “yes”, for instance, because the white employee cannot access particular resources or benefits afforded only to black members of the group, then the refusal of the white employee to join the group, in those circumstances, would occur “because of” their race. It would therefore fall within the definition of “direct discrimination” set out in the Equality Act.

Furthermore, the Equality Act provides “If the protected characteristic is race, less favourable treatment includes segregating B from others.” In the current example of the affinity group operating exclusively for black employees, “B” could, in fact, refer both to the white employees being excluded from the group or the black employees being included in the group. After all, both groups are being “segregated” from one another. This suggests that affinity groups are not only “segregationist”, but the very act of segregating staff in this way constitutes “less favourable treatment” compared with employees who aren’t separated by race. So, in the present example, the exclusion of a white employee on the basis of race would amount to both discrimination and segregation, even if the purpose of the black affinity group is commendable.

Would an employer have a defence to such instances of discrimination and segregation?

The “positive action” defence in section 158 of the Equality Act, in principle, can be used by employers to justify special provisions which help to overcome or minimise the disadvantage or meet the need for employees who share a protected characteristic (here “race”) if those employees:

  1. Experience a disadvantage,
  2. Have different needs, or
  3. Have disproportionately low participation in an activity as a result.


Evidencing that one or more of the relevant circumstances has arisen doesn’t have to involve sophisticated statistical data or research. It can simply be looking at workforce data or establishing the facts in consultation with workers.

So, for example, if an organisation finds that its minoritised ethnic employees tend to get stuck at particular promotion points, an employer can take proportionate action to achieve the stated aim of overcoming or minimising the disadvantage. Such action could include setting up affinity groups for minoritised ethnic employees, perhaps to meet, network and access particular resources, as a means of meeting their different needs or encouraging participation. However, such action is only lawful under the Equality Act if it is a “proportionate means” of doing so.

Are affinity groups a proportionate way to address the needs of minoritised ethnic workers?

Proportionality requires the employer to demonstrate that the affinity groups in its workplace are reasonably necessary. This means showing that the extent of the disadvantage / needs of the minoritised ethnic workers, for whom each group is provided, outweighs any negative effects that the affinity groups have on white colleagues. The employer should also consider whether the benefits minoritised ethnic workers derive from their own exclusive affinity groups could not equally be conferred by other measures which are not discriminatory (for example having the groups open to anyone that wishes to attend).

This assessment of proportionality should be an ongoing process in which the employer should periodically review the affinity groups to see how they operate, any harm they may be causing, and how far they remain necessary to achieving the ends they sought to pursue on behalf of their minoritised ethnic workers. It is good practice to document these matters and, if possible, articulate them in one place, whether as a standalone document (for example in an action plan for positive action) or as part of a broader diversity, equity, and inclusion (DE&I) management plan. This may also help to communicate to all staff why measures are being taken and why they are considered lawful.

Conclusion

So, while it seems that segregationist affinity groups can be justified as a form of positive action, it is perhaps more sensible for employers to encourage participation in such groups from everyone across the business. This would include “allies” who do not share the typical characteristics of any particular affinity group. Such individuals could still champion those groups and positively impact the race agenda within the workplace. That way, the organisation can foster an inclusive environment in which everyone in the workplace can feel like they belong. 

If you require further information about anything covered in this briefing, please contact Iman Kouchouk or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2023

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About the authors

Iman Kouchouk lawyer

Iman Kouchouk

Associate

Iman is an Associate in the Employment team. She advises both employers and employees on both contentious and non-contentious employment law issues.

Iman is an Associate in the Employment team. She advises both employers and employees on both contentious and non-contentious employment law issues.

Email Iman +44 (0)20 3375 7291
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