January 26, 2016

Author:  Bobbi K. Dominick

What do all of these things have in common?  Fear is sweeping through some parts of the country, and that fear is breaking out into the public forum in the form of an intense focus on terrorist incidents at home and abroad.  Employees are subjected to highly publicized statements by political candidates demonizing entire nations, refugees, or those of a particular religious faith.  These public discussions leak into the workplace, and have resulted in an increased focus on appropriate employer responses. 

On December 23, 2015, the EEOC responded to heightened concern about the treatment of those who are or are perceived to be “Muslim or Middle Eastern.”  The EEOC, as part of their responsibility to enforce laws prohibiting discrimination on the basis of race, gender, national origin or religion, issued a document called:  “Questions and Answers for Employers:  Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern.”  The EEOC made it clear that employers cannot tolerate harassment or discrimination against those who are perceived to be of a particular religion, Muslim, or of a particular national origin, Middle Eastern, simply because of public fears or misconceptions.  The EEOC reminded employers that they must not discriminate on the basis of religion, ethnicity, country of origin, race or color, and they must not allow harassment based upon these categories, or based upon a perception that someone might be in one of these protected classes.  In addition, employers must reasonably accommodate religious beliefs, including accommodation in practice or dress, unless it is an undue hardship. 

Some of the examples included:

  • An employee wearing a hijab, or head covering as part of their Muslim faith, and whether discomfort in the workplace, from either employees or customers, would allow the employer to ask the employee to remove the hijab.  The short answer is no, the employer is required to accommodate religious beliefs, and cannot use customer preference as an excuse, but instead should educate employees on the importance of accommodating religious beliefs, and avoiding discriminatory assumptions about a particular person.
  • An employee who is Muslim is engaged in increasingly disturbing conversations with a co-worker expressing fear and contempt for the Middle East.  The EEOC made it clear that the employer has a responsibility to assure a safe workplace, and while opinions may not rise to the level of unlawful harassment, they should be stopped so that the situation does not escalate.  The EEOC preference is clearly in favor of educating employees on respectful workplace.
  • In another example, an Arab American is subjected to name calling from co-workers, i.e. being called names like “the local terrorist” and “ISIS.”  Since these are clearly a reference to national origin and/or religion, and are used in a derogatory way, pervasive use of those terms to refer to an employee would be similar to using derogatory female terms to address female employees, behavior commonly accepted as inappropriate in the workplace.  The EEOC clearly would act against employers who did not take action to prevent or correct promptly workplace behavior that involves ethnic or religious slurs.  When such harassment is reported, action should be taken to end the harassment, and correct its effects on the complaining employees.  Corrective action could include counseling, a warning, or more severe discipline for the harasser.

    Employers who see any of these types of situations within their workplace should act immediately to reinforce respectful workplace behavior.  Additional respectful workplace training might be a good idea even for employers not faced with these issues, in a year when political rhetoric will dominate the media and the minds of many U.S. workers.  In addition, employers should review their employment policies and perhaps even reissue them to all employees, making sure that the type of behavior outlined by the EEOC in this guidance is strictly prohibited. 

    Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.