Following the San Bernardino, California attack in late 2015, crimes against Muslim Americans and mosques spiked in the U.S. This backlash appears to have captured the attention of the Equal Employment Opportunity Commission (EEOC), which has released a Guidance to encourage compliance with workplace protections for individuals who are, or are perceived to be, Muslim or Middle Eastern. Here are some highlights from that Guidance.
Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on religion, ethnicity, national origin, race or color. This means that employers may not discriminate against Muslim or Middle Eastern employees or applicants. To illustrate, the EEOC presents a scenario in which “Aliyyah,” a Muslim woman who wears a hijab (or head covering), applies for a position as a cashier at a retail store. The assistant store manager fears that Aliyyah’s religious attire will make customers uncomfortable. The EEOC explains that the employer may not deny Aliyyah the job due to customer preferences about religious attire, because doing so would equate to refusing to hire her because she is Muslim. The employer likewise could not assign Aliyyah to a position with no customer interaction because she wears a hijab.
The EEOC also addresses the issue of background checks. In another scenario, “Anwar,” whose family is from Egypt, applies for a job as a security guard. The EEOC notes that the employer may require Anwar to undergo the same pre-employment background checks that apply to other applicants for the same position. The employer may not, however, subject him to different or additional screening procedures. To do so would be unlawful discrimination.
The Guidance also addresses the issue of workplace harassment. In another scenario, “Muhammad” informs his manager that a co-worker is frequently referring to him as a “terrorist” or “ISIS.” Having received this notice, the employer has a duty to investigate. The employer should have Muhammad detail the offensive comments that he has heard, identify others who know about them and interview all involved. The EEOC advises that, if the employer’s investigation confirms that this harassing conduct did in fact occur, it must take disciplinary action against the harasser that is sufficient to ensure that it does not happen again.
The EEOC warns that not all forms of harassment are as obvious. For example, a well-intentioned co-worker may seek out a Muslim employee—“John”—to learn about his religion. John tells his supervisor about these discussions and says that he is increasingly uncomfortable with them. If John is uncomfortable telling his co-worker that these discussions are actually unwelcome, or if John has already asked him to stop but he has persisted, the supervisor or another appropriate manager should become involved. If the co-worker still persists, the employer should consider taking appropriate disciplinary action.
The EEOC’s Guidance serves as a reminder that every employer should have written policies prohibiting ethnic and religious slurs, as well as racial, sexual or other forms of harassment. Those policies should have clear complaint mechanisms for reporting harassment. They should also make it clear that retaliation against anyone who makes a good-faith complaint, or others who provide information about the matter, will not be tolerated. Managers should be trained in how to receive, investigate and resolve complaints of harassment. And when harassment is discovered, the employer must take appropriate action to end the harassment.
The attorneys in our Labor and Employment Law Practice Group can assist employers with the preparation of up-to-date harassment policies, training in implementation of the policies, investigation of complaints, the discipline or discharge of those who violate such policies and other issues or claims that arise out of these harassment and discrimination laws.