Fighting the Backlash

As Anti-Muslim sentiment rises in the United States -- fueled both by recent criminal incidents and the current political climate -- the EEOC has a message for employers: We're watching.

Tuesday, March 22, 2016
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Late last year, the Equal Employment Opportunity Commission issued a press release stating that matters involving the discrimination and harassment of Muslim employees will be an enforcement priority for the commission. "America was founded on the principle of religious freedom," EEOC Chair Jenny R. Yang wrote in the release. "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."

In the wake of domestic and international terrorism incidents involving Muslims, anti-Muslim sentiment is on the rise. That negative sentiment has the potential to flare up in the workplace. Experts say that, because the financial and reputational risks are so great, HR leaders need to ensure that they are taking appropriate proactive, and reactive, approaches to protect both employees and the organization.

In October 2015, after the EEOC took on their case, a federal jury in Peoria, Ill., awarded $240,000 to two Somalian-American Muslims who had been fired from their truck-driver jobs at Star Transport after refusing to transport alcohol, which violated their religious beliefs.

And just a few months before that case, the EEOC sued UPS for religious discrimination in a case that involved the company's alleged discrimination against applicants and employees based on incidents where employees' religious practices conflicted with UPS' uniform-and-appearance policy.

Perhaps one of the most well-known cases involves Abercrombie & Fitch, which settled two pending EEOC religious discrimination suits in 2013 on behalf of Muslim teens wearing hijabs. The company agreed to pay $71,000 and change its policies.

The EEOC release "is just a heads up" for employers, says Carmon Harvey, a shareholder with LeClairRyan in Philadelphia.  "It's not something necessarily new," she says, adding that sensitivities have certainly been heightened by both recent incidents of terrorism and the political climate. "The EEOC is letting employers know that this is going to be an area of enforcement going forward."

Meanwhile, Stan Pitts, a Detroit-based partner at Honigman who was previously a trial attorney for the EEOC, calls it "a very timely announcement given by the chair of the EEOC to say, 'Just remember, we can't pre-judge people, we should have tolerance and we should treat people fairly.' It's a very important announcement and very timely. I embrace it as an attorney who advises management."

So what should HR leaders be doing now to reduce the chances of their organization appearing on the EEOC's radar?

With the EEOC bringing this issue to light, Pitts says, employers have an opportunity to "retrain, reinforce your policies, talk about it and be cognizant of the issue." While he acknowledges that this may not be anything new, it is an important reminder for employers and HR to make sure they're appropriately communicating about and addressing these issues before they rise to the level of EEOC attention.

Hopefully, says Harvey, companies already have policies in place and are training employees on a regular basis about discrimination and harassment issues. But, even so, now may be a good time to brush off those policies and retrain employees -- and managers -- to ensure your workplace is free of these issues. "Employers and HR need to stop in and make sure employees are aware of what's not appropriate and won't be tolerated in the workplace," she says.

This may be particularly important for employers who know they have Muslim employees in their organizations. But, even for those that don't, issues may emerge during the recruitment and hiring process. No company is immune from the need to ensure that their staff understands what constitutes discrimination or harassment.

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Managers and supervisors, of course, can be the first line of defense, Harvey stresses. They may also be the greatest area of risk for organizations, so it's critical that they understand not only what kinds of behaviors may constitute harassment or discrimination, but also that they recognize their role in identifying and responding to any issues that may occur.

Importantly, says Pitts, the workplace culture and environment should be such that employees feel free to report any issues they may observe or be party to. "There should be a strong anti-retaliation environment," he says. If supervisors and managers "aren't enlightened," he says, they may create barriers that prevent issues from "bubbling up to a higher level where management can react." The key for HR, he says, is to ensure that they "have a pulse on the environment. The only way you can have that pulse is for you to get active reporting."

In general, workplaces fall into three broad categories in terms of their ability, or inclination, to manage issues of discrimination and harassment, he says. First, there are organizations that are firmly committed to a discrimination- and harassment-free environment and actively communicate with and train staff and managers. Then there are organizations that, for whatever reason, just don't seem to care. "There are folks, depending on where you are in America, who may think, 'This is my company and I have a right to hire who I want to hire, I have a right to treat my employees the way I want to treat them,' -- those kind of employers never get the message," says Pitts. And, then, there are those in the middle, says Pitts, who "want to do right," but don't know exactly how to do that.

"I think the EEOC announcement is going to reach that middle group who can do right," Pitts says, "if pushed."

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