Protecting American Values in the Wake of the WTC and Pentagon Attacks of 2001
By Paul M. Igasaki, IMDiversity.com Featured EEO Columnist
In the period following the terrorist attacks on the World Trade Center and the Pentagon, our country was swept by anger and fear. Defending the nation and seeking justice in response to such vicious attacks is understandable and appropriate. But while not surprising, acting against other Americans based upon their perceived race, ethnicity or religion strikes at the very heart of America’s identity and founding principles.
In the year following 9/11/2001, I visited one of my former hometowns, Sacramento, California. I read that the publisher of the local daily newspaper was addressing the students of a state university and called on them to respect their neighbors and their civil rights regardless of their ethnicities or religion. It was reported that she was heckled and booed aggressively by the students. One of the professors was quoted as saying he had never understood how Japanese Americans were so badly mistreated during World War II, but hearing his students’ prejudice helped him to understand the attacks on them and their incarceration.
Hate crimes and other backlash have been a serious problem since 9/11. These reactions are not rational and are serious crimes that need to be responded to aggressively. Indeed, similar targeting of those perceived to be Arab or Muslim occurred after the Oklahoma City bombing, where the terrorists turned out to be white Americans. But this column is focusing on employment matters and, like the rest of American life, it too has been affected. Some cases are outrageous and involve liability for discrimination and, in some cases, for criminal activity. Other situations may involve actions for which an employer is not accountable or where employees misread the motivations for an action. I’ll try to help sort it out.
In the period following the attacks, reports were made where it appeared that employees were being fired or not hired because of their race, ethnicity or religion or the perception of such based on appearance or their names. To the extent that this happened, it was discrimination. Discrimination is illegal if it is based on these factors. It is also illegal even if the target is not of the group the discriminator thinks they are.
Sikhs, a religious group originating in northern India, have faced substantial discrimination and backlash following 9/11. The first fatal hate crime involved a Sikh convenience store clerk apparently murdered due to his appearance. Sikh religious tradition requires the wearing of a turban and a beard by men. Despite the fact that Sikhs are not Moslem, this appearance fit the stereotype and some of the photographs of some Moslems from the Middle East, including Osama bin Laden.
Will a company’s position that an employee was terminated due to poor performance overcome a claim that the firing was due to an employee’s religion? If there is some justifiable basis, will that be conclusive?
Some of the employment incidents involved stated reasons that would not be discriminatory. Where the allegation is made, however, these rationales will be carefully scrutinized. If, for example, others similarly situated were not treated the same way, the justification may be seen as subterfuge. In one case, the EEOC filed suit where a pilot from the Pacific Islands who was Moslem was fired ostensibly because it was reported that he had been drinking before flying. While the latter may be the case, the EEOC stated that no investigation of the charge was made as would be usual procedure and the timing and method of firing made the explanation seem unfair. Where, for example, performance is cited as the cause, and the employee records seem to indicate good performance, the rationale will be suspect.
An airline explains that it did not hire a Arab American woman as a airport agent because, in the wake of 9/11, customers were made uneasy by her appearance. Is this a good reason?
No. A common explanation for discriminatory acts relates to the reaction by a company’s customers. Generally, this is not good enough. Consider that shortly after the passage of the Civil Rights Act in 1964 (2004 is its 40th anniversary), many employers insisted that they weren’t biased against African Americans, but because so many of their customers were they simply had to comply. It wasn’t an acceptable excuse then, and it isn’t now.
A woman working at a rental agency customer service desk is told that she cannot wear the head scarf that her religion requires because it conflicts with the company’s uniform policy. Is this allowable?
Probably not. Standards for dress or personal grooming choices may be discriminatory if they unreasonably restrict an employee’s religious requirements. This would especially be so if his practice had been previously allowed or if others are allowed accommodations. Can a Sikh salesman be required to shave off his beard or remove his turban to get or keep his job? Generally, where something is required by a religion, the employer will be expected to accommodate that practice unless it is unreasonable considering the nature of the job. Uniform standards generally won’t be seen as absolute. A head scarf (in one case an employee offered to use a company logo scarf for that purpose) wouldn’t seem to be objectionable. Requiring no scarf because of customer objection would not be a legitimate reason. Certainly, religions can’t treated differently. For example, if beards were allowed for Hassidic Jewish workers, then they should also be allowed for Sikh or Muslim men. If a turban is allowed, so should a yarmulke. Often, where religious practice requires something, the least restrictive way to achieve a legitimate business purpose will be looked for. Where health or safety reasons might be used as a rationale to bar beards, requiring a hair net might be seen as a less restrictive, and thus preferred, alternative.
Banning beards for all employees in and of itself does not appear to be discriminatory. Where there is a person who would wear a beard due to religious requirements, failing to hire that person may still be so, however. The right to practice one’s religion is not without some potential limits in the workplace. That right is balanced against the reasonable and legitimate business requirements that might lead to a conflicting rule. Simply preferring a more “clean cut” look would not be enough if it meant allowing a business to refuse jobs to Sikh or Hassidic men. If it only operated against someone like myself, who would wear a beard merely as a matter of personal preference, such a rule would not be discriminatory. The same balance would be considered with clothing or practices that were required.
Bans of turbans due to uniform requirements have been allowed in police uniforms. Where the uniform cap might conflict with a turban, the need for public safety personnel to be visible and recognizable to all has, until recently, overridden protection of religious expression. In Canada and the United Kingdom, however, Sikh men have been allowed to wear special police turbans of a uniform color and with the badge affixed up front. This last month, the New York City Human Rights Commission ruled that under that city’s laws, a Sikh policeman could not be required to give up his turban, so long as it fit certain uniform requirements (with the NY police badge).
Moslem employees want a private place where they may perform their daily required daily prayers. Is an employer required to accommodate this?
It depends. If, as in a case that the EEOC pursued, it was possible to do without an unreasonable burden on the business, it would be. In that case, an employer had allowed employees to do their prayers in a room that was not being used at that time. After 9/11, the practice was stopped. If no such area for prayers exists and the worksite is limited enough not to have other alternatives, it would probably be reasonable to decline such a request.
These issues came up most often historically in employees seeking alternative days off for religious observance. Most Jewish and Seventh Day Adventist employees sought Saturday as opposed to Sundays off. Generally, except where the work could not accommodate this difference, it has been allowed.
Fellow employees have taken to taunting a Pakistani American worker at a factory, calling him “camel jockey” and terrorist. The employee says the taunts have made him afraid. If the company tells the employees to stop teasing him, would that be sufficient?
Probably not, especially if the harassment continues or spreads after the company’s request. Harassment is another serious area that continues to be a problem in the workplace today. Obviously, where a manager or owner of a business harasses employees based on race, ethnicity, religion or perceptions thereof, the employer is liable for discrimination. Where coworkers or customers harass an employee, however, it will depend what the employer knows or should have known has happened, whether the employee followed reasonable company policy to indicate the objectionable incidents, and whether the employer took appropriate action swiftly to protect the employee and end the harassment.
Harassment can, and often does, take the form of ethnic or religious epithets, often done verbally and even where they may have been meant as a joke by the perpetrator (see my previous column on racial or ethnic harassment). They can be delivered as graffiti, on walls or work spaces, or using emails. It can even get to the level of physical assault, though the perpetrator may be liable criminally as well in those cases.
An employer would be expected to reprimand, transfer or fire a harassing employee depending upon the severity of the action. In any case, the employer would be expected to take whatever reasonable action was necessary to stop the harassment and protect the targeted employee. Where the employer didn’t know about it and the victim didn’t utilize existing procedures to complain of it, the employer would probably not be liable of the harassment until aware that it had occurred and was objected to. If the employer’s actions were insufficient, liability might also exist. For example, where one employee makes racially demeaning remarks to another worker and ties it to a threat, a reprimand would probably not be sufficient.
Salespeople for XYZ company are assessed by sales contacts made at regional software conventions. An Arab American and Indian American employee have been terminated because their contacts have sharply dropped since 9/11. They claim that it is because contacts seem more resistant to talking with them since that time apparently because of their ethnic appearance. Can the company do this?
Probably, if that is a firm practice of the company when sales drop off for any reason, unless the drop off was clearly due to ethnic prejudice. If the company had made exceptions for other reasons, the company should consider the explanations of the employees and consider them. While some of these situations are clear, there are many situations where the result would not be. Many Arab Americans, South Asians or other dark skinned employees who may be perceived to be Middle Eastern, have complained of problems in professions that require networking and personal contacts. Usually, it is hard to prove that drop offs in these contacts were due to discrimination. Where an employer believes this to be the case, and there are less severe alternatives available, she might be expected to act if there is something that can be done to reduce this problem. For example, assigning an employee to a territory where ethnic difference is more common and accepted or where a temporary alternative assignment is available. If the employer believes that discriminatory behavior is motivating the change, it comes close to other customer preference situations. Nevertheless, there may be situations where there is no reasonable alternative and the employer has done all she can to protect the employee.
Many, including in tech industries, that apply and await call backs find that they have received strikingly fewer call backs following 9/11 where their names indicate that they are Moslem or where their appearance leads to a similar conclusion. As in other situations, where there is reason to believe that discriminatory reasons were at play, there could be liability. The difficulty, however, as an applicant is to find evidence to support that allegation. Inferences could be drawn statistically and the burden might be required to demonstrate that the statistics were not due to discriminatory reasons, but that would require an assumption and willingness to pursue the case before that information is available.
An employee declines to perform a job assignment due to restrictions of their religion. The employer believes the assignment is part of the job. Can they be terminated for that refusal?
It depends on a number of factors. How central to the employee’s job is the assignment? Are there alternative assignments that would not conflict with the religious restrictions? Would there be enough for the worker to continue employment? That the duty is written into the job description is not conclusive, but it helps show the employer’s expectations and the relative importance of the assignment. The bottom line is again what is reasonable. An employer would not be expected to accommodate a request that would mean an employee could not perform a significant part of the position’s core responsibilities. If alternative assignments are available the request is more likely to be deemed reasonable. Clearly, there will be situations where what is reasonable is arguable.
Since 9/11, the incidents that have occurred have reduced generally in flagrance or severity. But with the reality that terrorism, or wars in which the enemy looks different from the majority of Americans, will continue, so also will these problems of discrimination. If we were to decide that the equal protection of the laws promised by our Constitution were to be overridden by our anger or fear, then terrorism would have truly defeated us.
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