I.  INTRODUCTION

The EEOC urges employers to prohibit harassment based on race, color, religion, gender, national origin, age, and disability. Given the prevailing climate of uncertainty and animosity created by terrorist attacks and now Operation Iraqi Freedom, it is incumbent on you to counsel employees not to discriminate against those who may be vilified in current press coverage. Indeed, on April 7, 2003, the EEOC filed its fourth lawsuit alleging backlash discrimination against employees related to the events of September 11, 2001, in which it seeks monetary relief in the form of back pay and compensatory and punitive damages, an order requiring the employer (Norwegian American Hospital) to implement measures to prevent a recurrence, and a permanent injunction against future discrimination and retaliation. The EEOC alleges that the employer subjected Rashidah Abdullah to harassment, discriminatory discipline, retaliation, and termination based on her Islamic beliefs. The EEOC also alleges that the religious discrimination and harassment continued and intensified in the months following September 11, 2001. As Cari M. Dominguez, EEOC Chair, stated during in the accompanying press release:

Our nation’s tradition of religious tolerance and our laws prohibiting discrimination and ensuring equal employment opportunity must be honored. Employers must remain vigilant in guarding against backlash discrimination directed at innocent individuals due to their religion, ethnicity, or country of origin - especially after the tragic events of September 11 and during this time of war.

The EEOC asserts that Abdullah’s manager made offensive comments about her religion and religious beliefs, including referring to the Muslim holy observance of Ramadan as “Taliban.” John Hendrickson, the EEOC’s lead attorney, stated that, “EEOC’s vigilance in preventing and remedying religious discrimination in the workplace, whether the religion involved is Christianity, Judaism, Islam or any other, has not and will not falter.” Finally, the EEOC District Office Director stated that, “[a]s the President and the federal government have repeatedly made clear since 9/11, any on-the-job backlash against our Muslim neighbors is unacceptable and will not be tolerated.” Given the EEOC’s new enforcement activity, vigilance against national origin and religious harassment is important now more than ever.

Just as the EEOC publishes guidelines to help employers and supervisory employees determine exactly what constitutes sexual harassment, the EEOC publishes guidelines to help employers and supervisory employees determine what constitutes harassment based on national origin and religion. Although the same body of law prohibits harassment based on any of the protected categories articulated in the opening sentence, this article focuses on national origin and religious harassment based on its newfound prominence within the EEOC. This article summarizes the relevant EEOC guidelines and emphasizes that prevention through education and familiarity is most effective in prohibiting this insidious workplace discrimination.

II.  NATIONAL ORIGIN HARASSMENT – 29 CFR § 1606.1 et seq.

The EEOC has consistently held that harassment on the basis of national origin is a violation of Title VII; therefore, you have an affirmative duty to maintain a working environment free of harassment on the basis of national origin. Just as with sexual and other forms of harassment, you must counsel your employees to refrain from uttering ethnic slurs or engaging in other verbal or physical conduct relating to an individual’s national origin, especially when such conduct creates a hostile work environment, interferes with work performance, or otherwise affects employment opportunities for the targeted individual. Because the potential for liability arising from national origin harassment is commensurate with the potential for liability arising from sexual harassment, supervisory employees must hold this and other forms of harassment in the same high regard.

The EEOC defines national origin discrimination broadly as including the denial of equal employment opportunity because of an individual’s place of origin, ancestry, or because an individual has the physical, cultural or linguistic characteristics of a national origin group. The EEOC will pay particular attention to charges alleging that individuals have been denied equal employment opportunity for reasons which are grounded in national origin considerations, such as (i) marriage to or association with persons of a national origin group; (ii) membership in, or association with an organization identified with or seeking to promote the interests of national origin groups; (iii) attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group; and (iv) because an individual’s name or spouse’s name is associated with a national origin group. Finally, it is important to note that the EEOC will apply general Title VII principles, such as disparate treatment and adverse impact, in examining claims of unlawful national origin discrimination.

Ethnic slurs and other verbal or physical conduct relating to an individual’s national origin constitute harassment when this conduct: (1) has the purpose or effect of creating an intimidating, hostile or offensive working environment; (2) has the purpose or effect of unreasonably interfering with an individual’s work performance; or (3) otherwise adversely affects an individual’s employment opportunities.

With regard to fellow employees, an employer is responsible for acts of harassment on the basis of national origin, if the employer, its agents, or supervisory employees knew or should have known of the conduct. The only way for the employer to avoid liability is to demonstrate that it took immediate and appropriate corrective action.

An employer is responsible for the acts of a supervisory employee engaging in harassment based on national origin if the supervisory employee is acting in an “agency capacity.” The circumstances of the particular employment relationship and the job functions performed by the supervisory employee are relevant to determine whether he is acting in an “agency capacity.” An agency relationship can also be established where the employer fails to institute an explicit policy against harassment that is clearly and regularly communicated to employees, or fails to establish a reasonably accessible procedure by which victims of harassment can make their complaints known to appropriate officials who are in a position to act on complaints.

Finally, an employer may even be responsible for the acts of non-employees with respect to workplace harassment of employees on the basis of national origin, where the employer, its agents, or supervisory employees, knew or should have known of the conduct and failed to take immediate and appropriate corrective action. In such situations, the EEOC considers the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of such non-employees.

III.  RELIGIOUS HARASSMENT – 29 CFR § 1605.1 et seq.

While it may appear clear when one of your employees is being ostracized on the basis of national origin, and may therefore be easier for you to address, the more clandestine form of discrimination, with which you must be equally vigilant in the current climate, is religious harassment. Because the EEOC is particularly sensitive to allegations of religious harassment at this time, you must take extra steps to prohibit religious harassment in your workplace.

The EEOC defines religious practices broadly to include moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views. Although this approach usually obliterates any issue about whether a practice or belief is religious at the EEOC level, most Courts would reject this broad definition of religious practices. Significantly, the fact that no religious group espouses such beliefs, or the fact that the religious group to which the individual professes to belong may not accept such belief, will not determine whether the belief is a religious belief of the employee or prospective employee.

Given the breadth of this definition, it is incumbent on supervisory employees to ensure that subordinates are intimately familiar with the prohibitions on religious harassment. Subordinates must also be informed that practices that may not appear to be connected with an established religion may nonetheless constitute a religious belief or practice and, therefore, should not be subjected to ridicule or other harassment.

Concomitant with this duty to recognize and uphold various religious practices, is the duty to reasonably accommodate individuals in the practice of their religion. In fact, the EEOC will seek to challenge employers who fail to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer can demonstrate that accommodation would result in undue hardship on the conduct of its business. Thus, after notification of an employee or prospective employee’s need for a religious accommodation, the employer must reasonably accommodate the individual’s religious practices. A refusal to accommodate is justified only when an employer can demonstrate that each available alternative method of accommodation would create an undue hardship. It is important to note, however, that evidence of undue hardship does not exist merely because many more people, with the same religious practices as the person being accommodated, may also need accommodation.

When more than one method of accommodation will avoid undue hardship, the EEOC will determine whether the accommodation offered is reasonable by examining: (i) the alternatives for accommodation considered by the employer; and (ii) the alternatives for accommodation, if any, actually offered to the individual requiring accommodation. The employer must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.

To justify a refusal to accommodate an employee’s need to be absent from scheduled hours, the employer must be able to demonstrate that the accommodation would require more than a de minimis cost. Undue hardship also exists if variance from a bona fide seniority system is necessary to accommodate an employee’s religious practices, if such variance would deny another employee the job or shift preference guaranteed by his seniority within the system.

The EEOC identifies alternative means of accommodating the conflict between work schedules and religious practices, which you should consider as part of the obligation to accommodate. These means, which are not intended to be all-inclusive, include the following: (i) voluntary substitutes and “swaps”; (ii) Flexible Scheduling; (iii) Lateral Transfer and Change of Job Assignments.

IV.  CONCLUSION

Because it may be difficult to insulate yourself from liability for national origin or religious harassment despite constant policing of supervisory and subordinate employees, the best way to avoid EEOC enforcement action is through prevention and education. Indeed, EEOC guidance confirms that an employer may even be held liable for the harassment of a non-employee if “feasible” in certain circumstances, such as where the employer, its agents, or supervisory employees knew or should have known of the conduct and failed to take immediate and appropriate corrective action, as feasible. For these reasons, you should take the following EEOC guidance, which stresses the importance of prevention explicitly, to heart:

Prevention is the best tool for the elimination of harassment. An employer should take all steps necessary to prevent harassment from occurring, including having an explicit policy against harassment that is clearly and regularly communicated to employees, explaining sanctions for harassment, developing methods to sensitize all supervisory and non-supervisory employees on issues of harassment, and informing employees of their right to raise, and the procedures for raising, the issue of harassment under Title VII, the ADEA, the ADA, and the Rehabilitation Act. An employer should provide an effective complaint procedure by which employees can make their complaints known to appropriate officials who are in a position to act on them.

Thus, the single most salient point regarding the EEOC’s guidance on national origin and religious harassment is that prevention is the best tool for the elimination of harassment. You should therefore take all reasonable steps necessary to prevent harassment from occurring, including the promulgation of an explicit policy against unlawful discrimination and harassment, including but not limited to national origin and religious harassment. This policy must be communicated to employees clearly and regularly. You must also explain your internal sanctions for harassment, develop methods to sensitize all supervisory and non-supervisory employees on issues of harassment, and inform all employees of their right to raise, and the procedures for raising, the issue of harassment under Title VII, the ADEA, the ADA, and the Rehabilitation Act. Such precautionary steps should insulate you from liability in the event an employee files a Charge of Discrimination with the EEOC alleging national origin or religious harassment.