Should employers hold events that separate or exclude employees by race, color, gender, religion or other protected characteristics?
That’s what Boston Mayor Michelle Wu did when she instructed her staffer, Denise DosSantos, to invite City Council members to the Mayor’s (apparently annual) “Electeds of Color Holiday Party” to be held at a city-owned building in Boston. The invitation was mistakenly sent to all council members, including the white ones, but it was only intended for members of council who were of “color.”
After realizing the error, a follow-up apology was sent stating she sent it to everyone by accident, and apologized if she offended anyone. She apologized for the “confusion.”
Several council members commented that there was nothing wrong with the segregation, adding that it was about creating spaces for “like-minded individuals to connect and support each other.”
But many other people on social media were quick to criticize, noting that people would have been outraged if it was a “whites only” party.
In an employment context, Wu’s actions could violate Title VII of the Civil Rights Act. According to the law, it is an “unlawful employment practice” to “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
From a technical perspective, a holiday party may not be an “employment opportunity” or adversely affect an employee’s status as an employee, unless it does. For example, could access to someone as powerful as the Mayor be a term or condition of employment? And that’s the problem.
Next year the United States Supreme Court will decide an employment case where an employee received a lateral transfer that she alleges was based on gender. The lower courts ruled that she suffered no adverse employment action and had no standing to sue. The Supreme Court will decide whether discrimination in any terms or conditions of employment, regardless of whether there is an adverse employment action, amounts to employment discrimination under federal law.
Depending on the Court’s ruling, DEI programs will likely be under more scrutiny.
In the Mayor’s case, she was acting in her official capacity as Mayor and likely using public funds for an event held in a public building. She can invite whoever she wants to a holiday party at her own home in her personal life.
Employers need to be mindful of reality and optics in their actions. While sometimes a space for like-minded people (such as employee resource groups) can be beneficial, they should not be exclusionary.
As we head into 2024, employers need to review their DEI programs and make sure they focus on inclusion, not exclusion. Programs that are discriminatory in the “name of DEI” might still be discriminatory.