Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The tragic events of September 11 have left all Americans feeling unsettled and fearful of their security. And who is to blame? Anyone who has watched television during the last week has seen multiple images of the suspect: a bearded man in a headdress and robes, a Yemeni by birth, a Muslim fundamentalist, and who is currently harbored by an Afghan Islamic fundamentalist regime. The alleged perpetrators of the horrific attacks have been preliminarily identified as young men who are Muslims from a variety of countries. Television and news sources repeatedly post their likenesses.
Reacting to these unprecedented attacks on U.S. soil, some Americans have vented their frustration and anger against persons of Arab, Middle Eastern, and South Asian national origins and Muslim religious backgrounds. Yet, with other Americans, Arab-Americans and American Muslims condemn the brutal attacks on the World Trade Center and the Pentagon. Muslim leaders explain that the beliefs of the terrorists are not shared, indeed, are abhorred by the majority of Muslims around the world. Often overlooked is that hundreds of the missing innocent Americans are persons of Arab, Middle Eastern, and South Asian descent and who are Muslim.
We must now return to work—but it will not be business as usual. Employees are still attempting to process these unprecedented events, and this often involves discussions with fellow workers. Employers are being encouraged by mental health experts to relax the rules and production standards a bit to allow for this processing to continue. It is inevitable that the talk radio discussions of how terrorists can justify their actions, based on their ethnic background and religious beliefs, will spill over into the production floor, the nearby cubicle, and the break room.
What can you do to prevent these discussions from disrupting employee relations and, even worse, creating liability for the organization? Looking ahead to what may be an extended involvement in combating terrorism, how can you prepare for the complaints and requests of Arab and Muslim employees, and others who may feel ostracized? We offer three key suggestions for you to prepare and, together with your employees, prevent a division among Americans in the workforce.
Communicate and Enforce Your Harassment Policy
A comprehensive harassment policy that offers a complaint procedure is an absolute must for defending any claim of harassment, particularly a claim of hostile environment harassment involving a supervisor. The Supreme Court has held that to defend such claims, a company must demonstrate that it took steps to prevent and correct harassment and that the employee claiming harassment failed to take advantage of the company's prevention and correction mechanisms. Prevention and correction should include the following: a written policy, including a complaint procedure, properly communicated to employees, properly investigated, and properly enforced by trained supervisors.
Update your unlawful harassment policy. The Supreme Court also made clear that the employer's affirmative defense applies not just in sexual harassment cases, but in all cases involving protected categories. Still, many companies have not updated their policies to include all forms of unlawful harassment. Courts following the Supreme Court decisions have applied the requirements of the affirmative defense in cases involving religion and race. The EEOC has issued policy guidance that makes clear it also applies to national origin claims. If you have not already done so, revise your company's policy to include all protected categories and include a complaint procedure.
Remind all employees of the unlawful discrimination and harassment policy. Periodic reminders of the company's strong stand against discrimination and harassment are helpful and necessary to maintain enforcement, but singling out a particular group is not generally appropriate. However, in the current highly charged atmosphere of national grief and anger, the employer should address the particular need to be alert to instances of harassment or intimidation against Arab Americans and/or Muslims.1 At the same time, employees should be reminded that this prohibition covers all races, religions, and ethnic backgrounds and all are entitled to the same protection.
Encourage employees to bring complaints and concerns to the attention of management. Employees need to understand that the company wants to be advised on behavior that is troublesome and disruptive to any employee, whether or not it rises to the level of unlawful harassment. In these emotional times, employees may be highly sensitive to remarks of coworkers and unduly prone to fear. They may be afraid to deal directly with coworkers and say that remarks are unwelcome. If the company has an aspirational policy requiring a higher standard of behavior than simply avoiding harassment, such as a company value that "employees treat one another with dignity and respect," this helps employees understand that behavior does not have to be extreme for them to raise a concern.
Clearly communicate the procedure for addressing complaints. The policy should provide at least one other avenue for complaints in addition to the employee's supervisor. Nevertheless, if a complaint is made to any supervisor or manager, the company is considered on notice and obligated to respond. The defense to a harassment claim requires a showing that the employee unreasonably failed to complain of harassment. It is not unreasonable if the employee is aware that the supervisor shrugs off complaints or is unreceptive to them. The policy should let employees know what will happen when a complaint is made: it will be promptly investigated and appropriate action taken.
Be Prepared for Discrimination and Harassment Complaints
Complaints are already increasing. Complaints of religious discrimination in general, and of various discrimination claims by Muslims, have increased sharply in recent years. Even before the terrorist attacks, claims reported by the rapidly growing Muslim community in America have risen sharply. The Council on American Islamic Relations (CAIR) reports in its annual study that complaints reported to CAIR (not necessarily to any enforcement agency) rose 15 percent in 2001, even before September 11.2 Various advocacy groups assist Muslim and Arab Americans with education about their rights as employees and with mediation or prosecution of claims. The American Arab Discrimination Committee includes advice on workplace discrimination on its website, as does CAIR.3 These and other resources providing an emphasis on workplace claims have increased awareness of employee workplace rights.
Many types of discrimination and harassment are implicated by these actions. Many races, national origins, ethnic backgrounds, religious beliefs, and other potentially protected categories are possible targets of discrimination. EEOC guidelines, reiterated in a press release urging tolerance in the wake of the attacks, identify the following bases for unlawful workplace bias relevant to the current situation:
- Religion, ethnicity, birthplace, culture, or linguistic characteristics;
- Marriage or association with persons of a national origin or religious group;
- Membership or association with specific ethnic or religious groups;
- Physical, linguistic, or cultural traits closely associated with a national origin group; for example, discrimination because of a person's physical features or traditional Arab style of dress; and
- Perception or belief that a person is a member of a particular national origin group, based on the person's speech, mannerisms, or appearance.
Courts have not consistently agreed with this broad definition of national origin, but both the EEOC and advocacy groups advise Arab American and Muslim employees that all of the above are unlawful.4 A review of the complaints received by CAIR in 2001 confirms that the definition of discrimination in the minds of those advising Muslim employees is very broad. To respond properly to claims of harassment, it is necessary to understand this view.5
Train supervisors in receiving complaints. If you have not conducted supervisor training on handling harassment complaints, it is crucially important to do so. All the effort involved in creating and disseminating an unlawful discrimination and harassment policy is lost when a supervisor ignores or fails to recognize a complaint. Even experienced supervisors may not be aware of the breadth of matters that implicate national origin, ethnicity, culture, or religious beliefs that may be brought up in the context of the terrorism threat. It may be necessary to acquaint supervisors with the culture and beliefs of minority groups that may be targeted by employees. In this regard, educational resources may be helpful in explaining Islamic beliefs that have been widely discussed as justification in the minds of the terrorists, for example, by pointing out that traditional Islamic teaching does not promote or condone the killing of innocent people.6
Train someone to investigate. Since immediate response to harassment claims is very important, the investigators must be trained in advance. Supervisors are not always the best investigators, so many companies designate someone in human resources or use outside investigators. Regardless of who investigates, it is necessary that the investigator be trained to investigate harassment and discrimination. Even a trained investigator may need additional tips on handling investigations regarding Arab or Muslim employees in this sensitive and volatile atmosphere.
Be Prepared for Religious Accommodation Claims
Prayer is proliferating. Never in most of our lifetimes have we seen the current attention and media coverage given to large groups of citizens praying. Muslims and non-Muslims alike apparently are feeling the need for prayer in these troubled times. At the same time, claims by Muslims seeking accommodation of their prayer needs in the workplace have greatly increased over the past few years. The uncertainty and fear Muslim and Arab employees may feel when hearing about abuses against these groups, and the fear of all citizens facing impending war, is likely to continue to increase attendance at religious observances. And, as Muslim advocacy groups assist the increasing Muslim population to assert their rights, claims for prayer and other accommodations in the workplace have already been increasing. For all these reasons, accommodation requests are likely to increase sharply.
Prepare a religious accommodation policy and procedure. There has been a discernible increase in Muslim claims for accommodation of prayer times, Friday services, deviations from the dress code, and facilities for prayer in the workplace. Religious beliefs and observances must be accommodated, unless the accommodation presents an undue hardship or, put another way, is unreasonable. The employer is not required to provide the requested accommodation, if it provides an alternative accommodation which fully eliminates the employee's conflict. Each suggested accommodation must be analyzed for undue hardship. Working with an employee requesting accommodation requires a careful step-by-step process, and employees often do not understand that the employer does not automatically have to meet their demands. Advocacy groups assisting employees know the ins and outs of this process, so the employer needs to have its own policy and procedure to follow. Forms are helpful at several stages: for employees to put in writing the requested accommodation(s), to acknowledge that they received a response to their request, to document accommodation(s) provided or offered, and to document the undue hardship created by those not provided, if any.
Avoid creating a discrimination issue in granting accommodations. In many cases, the standard for undue hardship is not that hard to meet, and the accommodation can be refused legally. However, employers often want to go further and offer a greater level of accommodation than the law requires. In the current crisis it would be natural for the compassionate employer to want to go the extra mile to accommodate Muslim employees, who have tended to be more urgent about expressing their needs for prayer accommodations and time off for services. Again, in this tense situation, this perception could change; Christian, Jewish, and other employees may begin to feel a greater need for religious observances. If the employer does not accommodate their requests to the same level as the Muslims' requests, it becomes discrimination. So, if the employer sets a higher standard than the rather low level of undue hardship, be prepared to respond in the same way to the requests of other religious groups.
America's diversity and its dedication to civil rights are core values that make America strong. Employers can prevent divisions among their employees simply by following the workplace principles we should already have in place. Please do not hesitate to contact your employment counsel if you need assistance in implementing these recommendations or developing your own unique means to preserve our unity in freedom.
1 Employees may need to be reminded that not all Arab American employees are Muslim; both abroad and in the U.S., many are Christian. Likewise, not all Muslim employees are Arab or Middle Eastern; a large percentage are African, South Asian, African-American, and numerous other ethnic backgrounds.
2 This study is available on the CAIR website: www.cair-net.org.
3 ADC's website: www.adc.org.
4 See, for example, ADC's discussion in "Un-Masking Job Discrimination" on its website.
5 CAIR study, see note 2 above.
6 One helpful resource is an excerpt from the book, Understanding Islam and Muslims, prepared by The Embassy of Saudi Arabia, at www.islamicity.com.
Dudley C. Rochelle is a shareholder and Charlotte K. McCluskey is an associate in Littler Mendelson's Atlanta office.If you would like further information, please contact your Littler attorney at 1.888.Littler, www.littler.com or email email@example.com or Ms. Rochelle at DRochelle@littler.com or Ms. McClusky at CMcClusky@littler.com.