Fear, emotionally charged perspectives on the Trump administration's immigration policy and deeply embedded religious views are all topics ripe for disagreements possibly escalating into use of slurs, threats and insults. The workplace, where many of us spend the majority of our weekdays, is one place where these agreements may percolate to a dangerous boiling point.
From this supercharged trio of issues of politics/religion/fear often grows stereotyping and actual or perceived acts of harassment and discrimination. It is therefore not surprising that the EEOC's Strategic Enforcement Plan for 2017-2021 included within its focus areas the "backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, as tragic events in the United States and abroad have increased the likelihood of discrimination against these communities." U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan Fiscal Years 2017-2021. This declaration, along with the substantial number of lawsuits filed by the EEOC regarding Muslims and persons of Middle Eastern national origin and the large number of charges filed as to these criteria (nearly 9,500 in 2015), should trigger heightened sensitivity and proactivity to avoid possible workplace claims. It should be noted that although President Trump's appointment of Victoria Lipnic as acting EEOC Chair may signal a more somewhat conservative/employer friendly Commission, it seems doubtful that the focus on backlash discrimination will significantly diminish anytime soon.
In June, 2015, the United Stated Supreme Court rejected Abercrombie & Fitch's defense to a religious discrimination claim filed by a Muslim woman who was not hired because her wearing of a headscarf conflicted with "Look Policy". Abercrombie argued that its Look Policy was neutral on its face (in that it did not allow headwear by anyone of any religion) and could not therefore constitute intentional discrimination noting that, "when an applicant requires an accommodation as an 'aspec[t] of religious . . . practice,' it is no response that the subsequent failure to hire was due to an otherwise-neutral policy. In other words, do not forget that Title VII requires that otherwise-neutral policies give way to the need for religious accommodation." EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015). In October, 2015, a jury in EEOC v. Star Transport, Inc., in the Central District of Illinois, awarded $240,000 to Muslim truck drivers who were terminated because they refused to transport alcohol due to their religious beliefs. One year later, in September, 2016, a jury awarded 1.5 million dollars to a Muslim employee of the Illinois Department of Transportation whose request for a quiet place to pray during lunch was rejected and was then terminated approximately three months later (there were cross allegations of threats and hostility).
In another recent decision, the Fourth Circuit in Guessous v. Fairview Prop. Invs. LLC, 828 F.3d 208 (4th Cir. 2016), reviewed a case involving allegations of a supervisor referring to Middle Easterners as "camel people" and Middle Easterners as "a bunch of crooks [who] will stop at nothing to screw you." Clearly, it is not surprising that these statements would support a discrimination claim. What is more interesting is that the Fourth Circuit found that the supervisors' frequent discussion and questions regarding Islam and Moroccan culture might be found to have been "motivated by broader ethnic animus." In the factual context of that case, such a finding is not necessarily surprising. However, such discussions clearly could be innocently initiated between co-workers in an effort to learn (usually a good thing) about different religions and cultures. The important take-away from this case is that even well intended discussions of religion or culture may result in an employee feeling targeted and harassed in our current political and social climate and thus, ultimately, in a discrimination charge or lawsuit. For all of these reasons, now is the good time to reinforce policies with management training pertaining to backlash discrimination and religion/national origin sensitivity. A good place to start is with review of the EEOC's question/answer publication explaining employment discrimination and harassment laws in the context of Muslim and Middle Eastern employees. EEOC Publication, Questions and Answers for Employees: Workplace Rights of Employees Who Are, or Are Perceived to Be, Muslim or Middle Eastern. The publication highlights the following issues:
1. Employers should not deny employment to individuals on the basis of their religious attire. Arguing perceived customer preferences will not be an effective defense.
2. Where name-calling or religious or ethnic slurs find their way into the workplace, "camel jockey," "the local terrorist," and "the ayatollah," whether in jest or not, managers and supervisors must take steps to correct the conduct by anyone under their control. Disciplinary action significant enough to ensure the harassment does not continue should be taken.
3. Employers should work closely with the employees to find appropriate religious accommodations that meet requests for prayer space and other religious needs that would not cause undue hardship to the company. Employers should consider conference rooms and other unused space and work with employees regarding breaks and make-up time (where break time is unavailable to accommodate prayer needs). Similarly, Muslim employees may need accommodations such as time off for religious holidays.
4. Employers should not engage in profiling and require background checks of Muslims or persons born in the Middle East where other applicant are not similarly required to have checks performed.
As in most matters of employment law, solid policies and strong training go a long way to avoiding many workplace claims. Backlash discrimination should not be forgotten in those trainings and should, in fact, be specifically addressed to ensure that employees understand they must check their politics and stereotyping at their employer's door.
Questions? Contact Attorney Jennifer Adams Murphy in our St. Charles office at (630) 377-1554 or by email at [email protected]