Harassment and Discrimination Based Upon Religion and National Origin
© Bob E. Lype, 2001
In the aftermath of the September 11 terrorist attacks, employers must be mindful of these "other," lesser known forms of unlawful conduct.
Most employers are keenly aware of certain types of prohibited employment discrimination and harassment, such as that based upon sex, age, or disability. And many employers are also aware, at least in some general sense, that employment discrimination law covers other types of unlawful employment discrimination, including that based upon the employee's or applicant's national origin or religious preferences. However, while nearly all employers routinely face employment decisions involving employees or applicants over age 40, or with some physical or mental disability, and while nearly all employers must deal with the equal treatment of men and women in the workplace, a great many employers have never faced situations involving different treatment of employees and applicants based upon their national origin or their religion.
The events of September 11, 2001 have left many Americans feeling afraid and anxious, often looking for someone to blame. Television reports have shown us pictures of the terrorists and their suspected leaders, who are identified as Middle Eastern or Arab men of the Muslim faith. Reacting to the horrific attacks, some Americans have vented their anger and frustration against persons in their communities – and in their workplaces – who look a certain way, or are from a certain culture, or members of a different religion. Even when there have been no physical acts or threats, general talk regarding these subjects "around the water cooler" can become heated, emotional, and sometimes disruptive.
What should an employer do in times like these to minimize disruptions, as well as to avoid any liabilities which may arise under employment discrimination laws? This article will address employer obligations and provide suggestions.
Your policies. First and foremost, make certain your anti-discrimination, anti-harassment policies are written, posted, and properly communicated. If a company can demonstrate that it took steps to prevent and correct harassment, and the person complaining failed to take advantage of prevention and correction mechanisms, then in many cases the company has a successful defense to a harassment claim (whether sexual, racial, religious or based upon national origin). The written policy should not only specify all the types of discrimination and harassment which are prohibited, but it should also include a complaint procedure which will allow the employee at least two avenues of registering a complaint. Besides having the written policy, it is imperative that the policy be properly communicated to employees, that supervisors be properly trained, and that complaints be properly investigated and handled.
Even if you have taken all of these steps, it never hurts to issue reminders of the company's strong stand against unlawful discrimination. Under the present circumstances, it might be appropriate to address the particular need to be alert for instances of harassment or intimidation against people of Middle Eastern descent or the Muslim faith. Some employees may automatically link Arab-American co-workers with the Muslim faith, without realizing that many Arab Americans are Christians or members of other faiths, and that many Muslims are not Arab Americans. Employees can be educated about the company's policies, as well as the dangers of making assumptions, all in the context of promoting the company's general directive that all co-workers, vendors, customers, etc., must be treated with dignity and respect. While patriotism runs high at this time, there is nothing un-patriotic about educating employees in these regards, nor enforcing these policies.
Be prepared for complaints. Even before the events of September 11, complaints of discrimination against Muslims increased 15% in the year 2001. The EEOC defines "national origin" discrimination to include bias based upon not only a person's place of birth, but also his or her style of dress, physical features, speech, mannerisms, etc.
If your company has not trained supervisors regarding handling harassment and discrimination complaints, it should. All of the benefits of a good harassment policy and procedure can be lost when a supervisor ignores or fails to recognize a complaint. Even experienced supervisors may not be aware of how broadly the categories of "religious" and "national origin" discrimination may be interpreted.
In addition, because a very quick response to harassment complaints is vital, the person(s) responsible for investigating complaints should be properly trained, as well. Even a trained investigator may need additional tips on handling religious or national origin discrimination claims, especially where Arab or Muslim employees are involved.
Religious accommodations. As we have seen in recent weeks, large groups of citizens have turned to prayer, including prayer in public and in groups, in these troubled times. Many employees have organized prayer groups. The employees may be followers of any faith. In fact, those practicing the Muslim religion are expected to set aside a number of times each day to devote to prayer.
There has been an increase in requests for accommodations in the workplace to allow for prayer times, observances, dress code deviations, and the like. The requests have come from employees of many different faiths. In general, religious beliefs and observances must be accommodated unless the accommodation presents an undue hardship or is in some way unreasonable. Also, the employer is not required to permit the specific accommodation which has been requested, if it provides an alternate accommodation which eliminates the employee's conflict. Each employee's request for an accommodation must be analyzed for undue hardship, as there can be no blanket rules.
In this regard, the employer needs to have its own, internal policy or procedure for handling requests for religious accommodation. For example, employers should require that requests be made in writing, on prescribed forms. If accommodations are made, they should be documented. If they are denied on account of undue hardship, there should be some written analysis or explanation.
Moreover, employers must be careful to avoid granting any preferences to one religious group over another. On the one hand, some compassionate employers have "gone the extra mile" to accommodate some employees who have requested time off for religious observances, prayer, etc. However, the employer must keep in mind that each such decision has the effect of setting some sort of precedent. It will be difficult to justify allowing one group time off, or devotional meetings at the workplace, yet deny similar requests which may come in the future from another religious group.
Conclusion. Employers must strike a balance between strong feelings of patriotism and recognition that diversity and dedication to civil rights are at the core of our nation's values. These suggestions can help achieve that delicate balance.