Background

In the wake of recent terrorist attacks in Paris and San Bernardino, the Equal Employment Opportunity Commission (EEOC) has warned employers to be proactive and take measures against discrimination aimed at those who are, or are perceived to be, either Muslim or Middle Eastern.

In her statement to address this issue, EEOC Chair Jenny R. Yang said, “America was founded on the principle of religious freedom. As a nation, we must continue to seek the fair treatment of all, even as we grapple with the concerns raised by the recent terrorist attacks. When people come to work and are unfairly harassed or otherwise targeted based on their religion or national origin, it undermines our shared and longstanding values of tolerance and equality for all.”

Title VII of the Civil Rights Act of 1964 is the federal law that prohibits employers from discriminating against employees and potential employees on the basis of national origin, religion, race, color or sex. Discrimination can potentially occur in many forms throughout the employment process, including hiring, firing, harassing, promoting or demoting, disciplining and accommodating. In support of the rising need to protect employees from discrimination, the EEOC has released two resource documents explaining the federal anti-discrimination laws in a Q&A format.

Employer responsibilities

The EEOC’s Employer Responsibility Q&A is designed to help employers meet their responsibility of preventing discrimination in the workplace. The following are specific examples cited by the EEOC to prevent workplace discrimination against employees who are, or appear to be, Muslim or Middle Eastern:

Hiring decisions:

• Employers may not deny applicants a job due to customer preferences about religious attire. For example, it would be a violation of Title VII to refuse to hire an applicant who wears religious attire such as a hijab (veil or headscarf).
• Employers should take preventative and proactive measures to prevent this form of discrimination. Employers should train all employees on objective, job-related criteria for hiring decisions.

Harassment:

• In response to terrorist attacks, employers may need to retrain their employees and publicize the company’s anti-harassment policies to prevent workplace interactions that could take the form of harassment for employees.
• In the event an employer learns of harassing conduct within the workplace, the employer should take immediate steps to address the situation. Disciplinary action should follow to prevent any further harassing behavior.

Religious accommodation:

• An employer should work closely with employees to create reasonable religious accommodations to help meet employee religious needs without causing undue hardship for the employer.
• In evaluating requests for prayer time, employers should allow the request if it does not impose an undue hardship.

Background investigations:

• An employer may require employee background checks prior to employment so long as the same pre-employment background check (including security measures) is required of all other applicants.
• Employers may not perform investigations or background checks in a discriminatory manner.

Employee workplace rights

As outlined in the EEOC’s Q&A for Employees, employees should be aware of their rights in the workplace.

Hiring:

• The only way to know whether an employer failed to hire an applicant for illegal, discriminatory purposes is to obtain more facts about the situation. A mere gut feeling that an applicant was denied employment based off national origin, race or religion is likely not enough.
• Customer preference is never a justification for discrimination against an employee and may never be used as a reason for failing to hire an employee.
• Employees may file a charge with the EEOC, who will assess the charge and conduct an investigation.

Harassment:

• Employees may face uncomfortable discussions in the workplace. If the situation does not rise to the level of harassment, employees should still communicate with co-workers, managers or supervisors to address and resolve the tension.

Religious accommodation:

• Employees may request a reasonable change in a workplace rule or policy that allows them to practice their religion. However, an employer will not be required to provide any accommodation that creates an undue hardship on the company or organization.
• An employer can require an employee to make up time if an employee requests break time for religious prayer.