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EEOC Warning Regarding Discriminatory Employee Profiling

01.22.2016

Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employers from discriminating against applicants and employees on the basis of race, color, national origin, sex, and religion in all aspects of employment, including hiring, job assignments, pay, and termination. Among other things, the law requires employers to reasonably accommodate employees’ religious practices or dress, unless doing so would pose an undue hardship, and to prevent or correct illegal workplace harassment. In addition, employers must not retaliate against an employee who complains about a discriminatory practice, files a charge, or assists in an investigation of discrimination.

In the initial months following the 9/11 terrorist attacks, the Equal Employment Opportunity Commission (the "EEOC") saw a 250% increase in the number of religion-based discrimination charges involving Muslims. Although the post-9/11 increase was short-lived, recent acts of domestic and international terrorism committed by followers of what some call "radical Islam" ensure that the Islamic faith, its Muslim believers, and people of Middle Eastern origin remain at the forefront of the public consciousness. Indeed, in late December 2015 the EEOC released guidance (the "Guidance") in two question-and-answer documents (one for employees and the other for employers) concerning employees who are, or who are perceived to be, Muslim or of Middle Eastern origin. Although the Guidance does not change the law regarding religious or national origin discrimination/harassment in the workplace, it serves as an important reminder of the steps employers can take to help avoid claims of discrimination or harassment based on religion or national origin.

Employment Decisions

In making hiring and other employment decisions (such as wages, placements, or promotions), the Guidance stresses the need to ensure that proper policies and practices are in place to facilitate non-discriminatory decision making. In addition to equal employment opportunity ("EEO") policies, employers should develop objective criteria for hiring decisions, promotions, compensation adjustments, and terminations. Decision makers should be well-versed in the company’s EEO policies and should seek to base every employment decision on the objective standards developed for such purposes. Also, since employment decisions may not be questioned until long after the actual decision is made, it is important that employment decisions are properly and timely documented.

Religious Accommodation

While employers may know that they must reasonably accommodate workers with disabilities, they may not be aware that such obligations also extend to an employee’s religious practices and dress, except where a requested accommodation poses an undue hardship. Generally, a reasonable accommodation is "a change in a workplace rule or policy to let [the employee] practice [his/her] religion." However, an employer may deny an accommodation if it would cause an undue hardship to the employer. A requested accommodation may cause an undue hardship if it poses more than a de minimis burden to the employer in terms of cost, safety, efficiency or if it infringes on the rights of other employees. Such a determination, however, should be cautiously made.

Employers considering denying an accommodation request on the basis of "undue hardship" should be prepared to demonstrate specific evidence of the (more than de minimis) harm that would result from granting the accommodation such as a breakdown showing lost productivity, heightened safety risks, or the increased burden on other employees.

Harassment

With respect to harassment, the Guidance states, "[i]n the aftermath of major attacks, workplace conversations and interactions related to these events may occur. In an atmosphere of heightened concern and apprehension, some employees may be more likely to make unguarded remarks, and others may be more afraid of harassment." The EEOC goes on to point out that

"[w]orkplace harassment and its costs are often preventable" and that specific policies and a confidential system for reporting complaints are key to preventing such conduct. Employers should develop (or redistribute existing) policies addressing harassment and describing the mechanism through which employees may make complaints in confidence. Such policies should be prominently featured in an employee handbook or policy manual and every new and existing employee should sign an acknowledgement that he or she has read and understands the handbook policies.

The Guidance makes it clear that protecting what it considers vulnerable populations will continue to be a priority, and that the onus is on employers to be proactive in addressing workplace discrimination and harassment based on religion and national origin. Now might be a good time to review and redistribute your policies.

If you lack EEO policies, need assistance with anti-harassment training or would like your existing policies reviewed, please contact a member of Koley Jessen’s Employment, Labor and Benefits Practice Group, and we will be happy to discuss solutions tailored to the specific needs of your workplace.

The Guidance for employers is accessible at http://www.eeoc.gov/eeoc/publications/muslim_middle_eastern_employees.cfm while the Guidance for employers may be found at http://www.eeoc.gov/eeoc/publications/muslim_middle_eastern_employers.cfm.

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