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Religious and Ethnic/National Origin Discrimination: Minimizing the Backlash

One of the effects of the recent terrorist activities has been a renewed sensitivity to discrimination based on religion, national origin and ethnicity. Title VII prohibits discrimination in employment on these bases, 42 U.S.C.A. §2000, and employers are required to reasonably accommodate employees' religious beliefs and practices.

In light of the heightened concerns about incidents of workplace discrimination based on these factors, the Equal Employment Opportunity Commission issued a special alert dated September 14, 2001, urging employers to be particularly vigilant to "instances of harassment or intimidation against Arab-American and Muslim employees."

In the wake of this week's tragic events, Cari M. Dominguez, Chair of the U.S. Equal Employment Opportunity Commission (EEOC), called on all employers and employees across the country to promote tolerance and guard against unlawful workplace discrimination based on national origin or religion.

"We should not allow our anger at the terrorists responsible for this week's heinous attacks to be misdirected against innocent individuals because of their religion, ethnicity, or country of origin," Chair Dominguez said. "In the midst of this tragedy, employers should take time to be alert to instances of harassment or intimidation against Arab-American and Muslim employees. Preventing and prohibiting injustices against our fellow workers is one way to fight back, if only symbolically, against the evil forces that assaulted our workplaces Tuesday morning."

EEOC encourages all employers to do the following:

• Reiterate policies against harassment based on religion, ethnicity, and national origin;
• Communicate procedures for addressing workplace discrimination and harassment;
• Urge employees to report any such improper conduct; and
• Provide training and counseling, as appropriate.

Ms. Dominguez exhorted all individuals to heed the words of President Bush, who said yesterday: "We must be mindful that as we seek to win the war [against terrorism] we treat Arab-Americans and Muslims with the respect they deserve."

EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, religion, national origin, sex, and retaliation for filing a complaint. For example, Title VII precludes workplace bias based on the following:

• 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. "Our laws reaffirm our national values of tolerance and civilized conduct. At this time of trial, these values will strengthen us as a common people," Ms. Dominguez said. "The nation's workplaces are fortified by the enduring ability of Americans of diverse backgrounds, beliefs, and nationalities to work together harmoniously and productively."

Individuals are protected from workplace discrimination and harassment based on their religious beliefs, ethnicity or national origin. The terms "religion" and "religious practices" have been defined in the law itself to include all aspects of religious observance and practice, as well as belief. Additionally, the EEOC defines religious practices as including "moral or ethical beliefs as to what is right and wrong [and] which are sincerely held with the strength of traditional religious views."

Examples of "religious beliefs" held to be protected under Title VII include:

1. "Old Catholic" belief employee had to keep her head covered at all times;
2. wearing of an anti-abortion button with a picture of a fetus;
3. a Jehovah's Witness' refusal to work on military tanks; and
4. an employee's request for one day of unpaid leave to attend a religious festival.

On the other hand, personal beliefs held not to be protected under Title VII include:

1. eating a certain brand of cat food to enhance well-being;
2. Baptist's claimed belief in adultery; and
3. claim to be unable to work on Sundays when the employee had worked on Sunday in the past.

Title VII also imposes a duty on employers to "reasonably accommodate" an employee's religious practices provided such accommodation does not cause "undue hardship" to the employer's business. The standard for determining when a requested accommodation will create "undue hardship" is a "de minimus" standard, which has been held by various courts to mean, among other things, an action which would result in:

1. discrimination against co-employees;
2. breach of a seniority system;
3. the payment of a premium wage for a substitute; or
4. loss of efficiency.

Even if a requested accommodation creates such a hardship, the employer still is required to make some attempt at accommodation, unless it can show it is unable to take any action.