The Employer's Legal Resource: EEOC Reminder About Job Equality: Protecting Muslim and Middle Eastern Employees from Unlawful Workplace Discrimination or Harassment
Just before the holidays, the EEOC issued new guidance for both employers and employees regarding discrimination against workers who are (or who are perceived to be) Muslim or Middle Eastern. The publications come after the well-publicized "attacks in Paris and San Bernardino, California, in late 2015 and other recent world events," which have "heightened" the EEOC's "concerns about workplace protections" for Muslim and Middle Eastern employees. The new EEOC guidance is a formal reminder that "reactions in the workplace to world events demand increased efforts by employers to prevent discrimination."
The EEOC issued separate advisories for employers and employees, but guidance in the two documents is largely similar. The EEOC generally reiterated that discrimination in the workplace based on religion, national origin, or race is strictly prohibited under Title VII. Employers cannot discriminate against Muslim or Middle Eastern workers in any aspect of employment, including hiring, job assignments, pay, and termination, and employees who complain about a discriminatory practice or assist in a discrimination or harassment investigation are protected against retaliation by their employer. Employers are also responsible for preventing or correcting unlawful harassment by coworkers, and for reasonably accommodating employee religious practices or dress unless it cau ses an undue hardship for the employer.
The EEOC guidance is a Q&A that addresses several illustrations of specific employment scenarios involving unlawful or potentially unlawful discrimination or harassment against Muslim or Middle Eastern employees:
- Female Muslim Applicants/Employees Who Wear a Hijab. An employer cannot refuse to hire an applicant or make other decisions regarding an existing employee because of his or her religion, which includes religious attire such as a hijab. Refusing to hire someone because you perceive your customers or coworkers may have preferences regarding religious attire--including assigning an employee to a specific position with no interaction with customers because she wears a hijab--or because customers or coworkers may be uncomfortable with that person's religion or national origin is illegal.
This also applies to employee placement with clients (such as temporary staffing workers); an employer cannot ask its employee to remove her hijab or reassign another employee who does not wear a hijab to that position, even if the client specifically requests the employer to do so. Such conduct would be a violation of Title VII by both the employer and the client with whom the Muslim employee has the assignment. If the client does not withdraw its request, the employer should place the employee in another position at the same rate of pay and decline to assign another worker to the client unless the client changes its practices so that such unlawful discrimination will not recur.
- Harassment of Muslim or Middle Eastern Employees by Coworkers. Employees who feel that they are being harassed by coworkers because of their Muslim religion or Middle Eastern descent should immediately talk to their manager, supervisor, or Human Resources. Potentially objectionable conduct may include anything from outright calling the employee names like "the local terrorist," "fanatic," or "ISIS," to lengthy but seemingly benign conversations about Islam, ISIS, and terrorism--which may generally be uncomfortable or inappropriate topics of workplace discussion and have the potential to escalate in the future. Religious or ethnic epithets and ongoing workplace hostility can amount to unlawful harassment. Even if the employee's specific situation does not currently amount to illegal harassment, there are still steps an employer can take to prevent the conduct from escalating. Managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for promptly taking steps to correct such conduct by anyone under their control. If an investigation reveals that unlawful harassment has occurred, appropriate disciplinary action should be taken against the offending employee to ensure that such harassment does not continue.
- Religious Accommodations for Muslim Employees. Employers should work with employees who request religious accommodations to find an appropriate accommodation that meets their religious needs without causing an undue hardship for the employer. Whether a reasonable accommodation would impose undue hardship and therefore not be required depends on the particular workplace and the accommodation requested. For example, a group of Muslim employees requests permission to use the employer's conference room in an adjacent building for prayer (which they were previously doing at their individual workstations). If the conference room is needed for business purposes, the employer can deny the employees permission to use it for religious purposes; however, allowing a group of Muslim employees to use a conference room for prayer would likely not impose an undue hardship on the employer in many circumstances. Muslim employees may be able to say prayers du ring normal work breaks so that ordinary operations are not disrupted, but employers may require those employees to make up any work time missed for religious observance. Even if going to another building for prayer takes longer than the allotted break periods, employees can still be accommodated if flexible scheduling is feasible. In evaluating whether a particular accommodation creates an undue hardship, the employer should consider only whether it can accommodate the employees who actually made the request. Because individual religious practices vary among members of the same religion, the employer should not deny the requested accommodation based on speculation that additional Muslim employees will seek the same accommodation in the future. If other Muslim employees subsequently request the same accommodation and granting it to all of the requesters would cause undue hardship, the employer can make an appropriate adjustment at that time. Like employees of other religio ns, Muslim employees may also need accommodations such as time off for religious holidays or exceptions to dress and grooming codes.
- Background Investigations of Muslim or Middle Eastern Applicants/Employees. Employers may require Muslim or Middle Eastern applicants to undergo the same pre-employment security checks that apply to other applicants for the same position. As with other employment practices, an employer may not perform background investigations or other screening procedures in a discriminatory manner. If an employer does not regularly require a background check for the position applied to, the employer cannot conduct a background check on a Muslim or Middle Eastern applicant simply because of his or her religion or national origin--including, for example, if the employer believes the applicant's Muslim religion makes it likely that he or she is somehow tied to terrorism. In addition, employers may require a security clearance pursuant to a federal statute or executive order. Security clearance determinations for positions subject to national security requirem ents under a federal statute or executive order (such as contractors who provide security services at government office buildings) are not subject to review under the equal employment opportunity statutes.
The EEOC specifically cautions that, "in the aftermath of major attacks, workplace conversations and interactions related to those events may occur. In an atmosphere of heightened concern and apprehension, some employees may be more likely to make unguarded remarks, and others may be more afraid of harassment." In light of these recent terrorist events, and as an extension of the specific situational guidance provided above, the EEOC more generally encourages employers to consider revisiting their current policies or taking other preventative measures to protect against unlawful discrimination or harassment in the workplace, including toward Muslim or Middle Eastern employees and applicants.
What Should Employers Do? Below are some specific proactive recommendations for employers to prevent unlawful discrimination or harassment before it occurs in the current workplace climate:
- Publicize the employer's anti-harassment and anti-retaliation policies and procedures and encourage employees to review and become familiar with these policies and procedures;
- Remind managers and employees that discrimination based on religion or national origin is not tolerated by the employer in any aspect of employment, including but not limited to hiring;
- Train or retrain all employees who conduct hiring and issue or re-issue hiring standards that emphasize objective, job-related criteria;
- Clear and effective policies prohibiting ethnic and religious slurs, or other related offensive conduct, are important to prevent harassment;
- Confidential complaint mechanisms for promptly reporting harassment are critical, and these policies should be written to encourage people 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, and corrective action should include counseling, a warning, or more severe discipline for the harasser;
- Re-issue workplace policies or provide training about harassment and discrimination based on religion, national origin, or other protected bases.
If you have questions, you can visit the EEOC's website for more information on how to address workplace problems relating to discrimination based on religion, national origin, race, or color, or contact legal counsel.
By Rebecca D. Stanglein, firstname.lastname@example.org