For a week, the nation’s news reporters were captivated by a Florida preacher’s plans to burn the Quran on the anniversary of the September 11th terrorist attacks. Although he ultimately backed down, his campaign and the heated debates and protests over planned mosques near ground zero and in other parts of the country have drawn attention to the fact that many Americans harbor resentment, anger, and fear toward the Muslim community.
Many Muslims have commented that they feel more in danger and stereotyped than they did immediately after the September 11 attacks, and the Equal Employment Opportunity Commission (EEOC) has the statistics to back up those feelings. Between September 11, 2001, and May 7, 2002, the EEOC received 497 discrimination charges on the basis of Muslim religion (up from 193 a year earlier). The number has risen steadily in recent years — from 697 claims in 2004 and 1,034 claims in 2008 to 1,490 claims in 2009.
After September 11, 2001, the EEOC released guidance reinforcing Title VII of the Civil Rights Act of 1964’s well-known prohibitions against discrimination against any national origin group. Nine years later, those guidelines are still very relevant and remind employers that there is no justification in taking an adverse action against someone based on a protected category such as national origin or religion.
Customer Complaints Are No Defense
Times are hard, and it can be tempting to give in to customers’ wishes, even unreasonable ones, for the sake of keeping business. But what do you do if your customers complain that your receptionist’s Middle Eastern accent and appearance make them uncomfortable in light of world events?
The EEOC’s guidelines clearly reject that explanation as a reason for any adverse employment action: “[E]mployers may not rely on coworker, customer or client preference as the basis for a discriminatory action. If an employer takes an action based on the discriminatory preferences of others, the employer is also discriminating.” The guidelines also prohibit alternatives such as transferring the receptionist to the mailroom to remove her from public interaction.
Language Requirements and “Accent Discrimination”
Language requirements, particularly “English-only rules,” have been a sticky topic and the subject of much litigation. The EEOC guidelines mandate that when you consider making demands of “fluency,” the issue is whether you can legitimately take an employee’s or applicant’s foreign accent or ease with which he uses English into consideration in the employment context. According to the EEOC, “an employment decision based on foreign accent doesn’t violate Title VII if . . . the accent interferes with the ability to perform job duties.”
If you choose to set job requirements based on employees’ accents, you will need to look at the specific job duties and the accent’s effect on the individual’s ability to perform them on a case-by-case basis. The EEOC says that a person’s accent can be a deciding factor in an employment decision only when it “materially [or significantly] interferes” with the ability to communicate. For example, if a hotel concierge’s accent consistently leads to complaints that he can’t be understood in providing directions, the hotel could transfer him to a job in which he didn’t significantly interact with the public.
The EEOC guidelines allow that there are times when an employee’s or applicant’s lack of proficiency in English may interfere with job performance to the point that the employer can remove (or not hire) the employee or applicant in question. Once again, that requires a careful, fact-intensive analysis, and consultation with your attorney is highly advisable before taking action.
More Advice from the EEOC
Based on the EEOC’s guidance, you should consider the following proactive measures for preventing discrimination in hiring and other employment decisions:
- Communicate and Enforce Your Company’s Harassment Policy. Clearly communicate to all employees the company’s current policy regarding harassment. Remind managers and employees that your company prohibits discrimination based on religion or national origin in any aspect of employment. As always, clear and effective policies are key to preventing workplace harassment.
- Be Prepared to Handle Discrimination and Harassment Complaints. When an employee complains about harassment, investigate fully and promptly. Take steps to end the harassment and correct its effects on the complaining employee. Provide confidential complaint mechanisms to encourage prompt reporting of incidents.
- Remember, a Number of Situations Fall into the Category of Unlawful Discrimination and Harassment. Some examples of unlawful workplace bias include: (1) adverse actions based on physical, linguistic, or cultural traits closely associated with a national origin or religious group (for example, discrimination based on a person’s physical features or Arab style of dress); and (2) discrimination or harassment based on a perception or belief that a person is a member of a particular national origin group solely because of that person’s speech or appearance.
- Be Prepared to Address Religious Accommodations. You may be faced with an increase in requests for prayer time or other religious accommodations in the workplace. Remember that religious accommodations must be granted unless the accommodation presents an undue hardship on your company. If you’re presented with a request for a religious accommodation, it may be advisable to seek legal counsel.