Post-9/11 Discrimination Invades the Workplace
Posted on May 15, 2002 on Discrimination and Harassment by
|The Equal Employment Opportunity Commission (EEOC) recently released that Muslim discrimination complaints between September 11 and May 7, 2002 have nearly tripled compared to the same months last year. Many charges have been filed by individuals who are or are perceived to be Muslim, Arab, South Asian or Sikh. While employers have an ongoing responsibility to address workplace discrimination, reaction to the events of September 11, 2001, may demand increased efforts to prevent discrimination.
To address many employers’ questions about how to handle such workplace discrimination, the EEOC published the following advice covering issues such as hiring, discharge, harassment and religious accommodation.
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Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on religion, ethnicity, country of origin, race and color. Such discrimination is prohibited in any aspect of employment, including recruitment, hiring, promotion, benefits, training, job duties, and termination. Workplace harassment is also prohibited by Title VII. In addition, an employer must provide a reasonable accommodation for religious practices unless doing so would result in undue hardship. The law prohibits retaliation against an individual because s/he has engaged in protected activity, which includes filing a charge, testifying, assisting, or participating in any manner in an investigation, or opposing a discriminatory practice. Employers with 15 or more employees are required to comply with Title VII. Title VII also prohibits discrimination by most unions and employment agencies.
HIRING AND OTHER EMPLOYMENT DECISIONS
Narinder, a South Asian man who wears a Sikh turban, applies for a position as a cashier at XYZ Discount Goods. XYZ fears Narinder’s religious attire will make customers uncomfortable. What should XYZ do?
XYZ should not deny Narinder the job due to notions of customer preferences about religious attire. That would be unlawful. It would be the same as refusing to hire Narinder because he is a Sikh.
XYZ Discount Goods should also consider proactive measures for preventing discrimination in hiring and other employment decisions. XYZ could remind its managers and employees that discrimination based on religion or national origin is not tolerated by the company in any aspect of employment, including hiring. XYZ could also adopt objective standards for selecting new employees. It is important to hire people based on their qualifications rather than on perceptions about their religion, race or national origin.
Muhammad, who is Arab American, works for XYZ Motors, a large used car business. Muhammad meets with his manager and complains that Bill, one of his coworkers, regularly calls him names like “camel jockey,” “the local terrorist,” and “the ayatollah,” and has intentionally embarrassed him in front of customers by claiming that he is incompetent. How should the supervisor respond? Managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for taking steps to correct the conduct by anyone under their control. Muhammad’s manager should relay Muhammad’s complaint to the appropriate manager if he does not supervise Bill. If XYZ Motors then determines that Bill has harassed Muhammad, it should take disciplinary action against Bill that is significant enough to ensure that the harassment does not continue.
Workplace harassment and its costs are often preventable. Clear and effective policies prohibiting ethnic and religious slurs, and related offensive conduct, are needed. Confidential complaint mechanisms for promptly reporting harassment are critical, and these policies should be written to encourage victims and witnesses to come forward. When harassment is reported, the focus should be on action to end the harassment and correct its effects on the complaining employee.
Three of the 10 Muslim employees in XYZ’s 30-person template design division approach their supervisor and ask that they be allowed to use a conference room in an adjacent building for prayer. Until making the request, those employees prayed at their work stations. What should XYZ do? XYZ should work closely with the employees to find an appropriate accommodation that meets their religious needs without causing an undue hardship for XYZ. Whether a reasonable accommodation would impose undue hardship and therefore not be required depends on the particulars of the business and the requested accommodation.
When the room is needed for business purposes, XYZ can deny its use for personal religious purposes. However, allowing the employees to use the conference room for prayers likely would not impose an undue hardship on XYZ in many other circumstances.
Similarly, prayer often can be performed during breaks, so that providing sufficient time during work hours for prayer would not result in an undue hardship. If going to another building for prayer takes longer than the allotted break periods, the employees still can be accommodated if the nature of the template design division’s work makes flexible scheduling feasible. XYZ can require employees to make up any work time missed for religious observance.
In evaluating undue hardship, XYZ should consider only whether it can accommodate the three employees who made the request. If XYZ can accommodate three employees, it should do so. Because individual religious practices vary among members of the same religion, XYZ should not deny the requested accommodation based on speculation that the other Muslim employees may seek the same accommodation. If other employees subsequently request the same accommodation and granting it to all of the requesters would cause undue hardship, XYZ can make an appropriate adjustment at that time. For example, if accommodating five employees would not cause an undue hardship but accommodating six would impose such hardship, the sixth request could be denied.
Like employees of other religions, Muslim employees may need accommodations such as time off for religious holidays or exceptions to dress and grooming codes.
Susan is an experienced clerical worker who wears a hijab (head scarf) in conformance with her Muslim beliefs. XYZ Temps places Susan in a long-term assignment with one of its clients. The client contacts XYZ and requests that it notify Susan that she must remove her hijab while working at the front desk, or that XYZ assign another person to Susan’s position. According to the client, Susan’s religious attire violates its dress code and presents the “wrong image.” Should XYZ comply with its client’s request?
XYZ Temps may not comply with this client request without violating Title VII. The client would also violate Title VII if it made Susan remove her hijab or changed her duties to keep her out of public view. Therefore, XYZ should strongly advise against this course of action. Notions about customer preference real or perceived do not establish undue hardship, so the client should make an exception to its dress code to let Susan wear her hijab during front desk duty as a religious accommodation. If the client does not withdraw the request, XYZ should place Susan in another assignment at the same rate of pay and decline to assign another worker to the client.
Anwar, who was born in Egypt, applies for a position as a security guard with XYZ Corp., which contracts to provide security services at government office buildings. Can XYZ require Muhammad to undergo a background investigation before he is hired?
XYZ may require Anwar to undergo the same pre-employment security checks that apply to other applicants for the same position. As with its other employment practices, XYZ may not perform background investigations or other screening procedures in a discriminatory manner.
In addition, XYZ may require a security clearance pursuant to a federal statute or Executive Order. Security clearance determinations for positions subject to national security requirements under a federal statute or an Executive Order are not subject to review under the equal employment opportunity statutes.