By Jon Benson, employment & labor attorney at Vigilant*
The U.S. Equal Employment Opportunity Commission (EEOC) is focusing a spotlight on discrimination against Muslim and Middle Eastern employees. The agency released new webpages and Q&A documents for both employers and employees shortly after the late 2015 terrorist attacks in Paris and San Bernardino. The EEOC advises employers to have a heightened awareness of how these tragic world events, and others, could lead to discrimination in the workplace.
In the case of employees who are Muslim or of Middle Eastern origin (or perceived to be so), the EEOC warns of discrimination based upon religion, ethnicity, national origin, race, or color.
Employers should know that generally they are not held liable for isolated incidents of discrimination or harassment based on the actions of non-supervisory employees. However, once the employer knows about discrimination or harassment by co-workers (or vendors or patrons) against its workers, it has a duty to investigate and take appropriate actions. If the company does not take appropriate actions, including discipline, or allows the conduct to continue, then the employer can be held liable. Overt harassment and discrimination in the form of insults and name-calling are pretty easy to spot. However, other potential forms of discrimination may not be so obvious.
Some of the trickiest situations involve the accommodation of employees’ sincerely held religious beliefs.
Title VII of the Civil Rights Act requires employers with 15 or more employees to “reasonably accommodate” an employee’s religious beliefs unless doing so would create an undue hardship for the business. Exactly what is a reasonable accommodation and what is an undue hardship can be specific. But, valid considerations for an employer in evaluating an employee’s requested accommodation include: the relative cost; the burden placed on other workers; and any safety or hygiene issues, just to name a few.
I. Dress codes
Dress codes can be a potential source of discrimination claims. Employers generally have the right to set standards for dress and grooming. However, a dress code can come into conflict with an employee’s religious beliefs and practice. One example for Muslim employees is the hijab or other type of head scarf or covering worn by women.
The U.S. Supreme Court recently weighed in on this issue in EEOC v. Abercrombie & Fitch, Inc. In this case, the employer refused to hire a woman who wore a hijab for religious reasons. The woman had otherwise done very well in the interview process and scored highly in the company’s internal evaluation system. Abercrombie & Fitch defended its decision by claiming that the hijab violated the company’s written “Look Policy” which prohibited “caps” of any kind to be worn on employees’ heads. Although the rule was neutral and applied to all types of head coverings, in this case the Court said the employer had a duty to accommodate and that there was no undue hardship to the company in permitting an employee to wear a hijab.
Nevertheless, employers can usually enforce dress codes when there is a valid business-related reason. For example, an employer can generally enforce a dress code, despite an employee’s religious objection if the requirements of the dress code relate to safety or hygiene issues. This is often an issue in manufacturing settings.
II. Muslim prayer and varying scheduled breaks
In another case, Muslim employees of a meat packing plant had been using break times for prayers. They had requested that their break times be continually shifted to coincide with sundown in accordance with religious practice. Because the time that sundown occurs varies throughout the year, the break times would constantly change throughout the year. The company refused this requested accommodation and the EEOC filed suit. The company argued it was an undue hardship to be constantly changing the break times because it would impede production in this manufacturing setting and would create problems with other employees having to cover the times for these workers. In this case, a federal court ruled in favor of the employer saying that this represented an undue hardship. The outcome in these types of cases heavily depends on the facts of each case.
Incidentally, this issue also comes up with non-Muslim employees whose religious beliefs and practice prevent them from working on the Sabbath day. Typically, that involves a request not to work on Saturday or Sunday, and the restriction may begin at sundown the previous day.
III. Alcohol, pork and other prohibited items
Alcohol and pork are considered haram, or forbidden, in Islam. So, what do you do if your employee says they can’t touch or serve to customers any alcohol or pork products? Do you really have to comply with those requests? Of course, the answer is “it depends.” Is there a reasonable accommodation that would not impose an undue hardship on the employer?
Example: Some Starbucks stores now serve wine to customers, though the vast majority of sales remain coffee, tea and their regular items. If a Muslim barista refused to serve the occasional glass of wine, that might be easily accommodated by having another clerk take that order.
By contrast, it would likely be an “undue hardship” for a Muslim job applicant to apply for a server position at a South Florida beach bar catering to college Spring Break students and refuse to handle alcohol.
Regular training and education for managers and employees on these issues and your anti-harassment policies is essential. Make sure managers understand their role and that your organization responds promptly and investigates any allegations of discrimination or harassment.
About the Author
Jon Benson is an employment & labor attorney at Vigilant, a company headquartered in Oregon, dedicated to helping companies in Oregon, Washington, Montana, Idaho and California solve their most complex employment issues.
*Meet the Vigilant team at HR West 2016 - Booth 30