As we close the books on 2015, fueled in no small part by the terrorist attacks in Paris and San Bernardino, the immigration crisis in Europe, our own crazy election-cycle politics, etc., etc., there is a palpable anti-Muslim rhetoric that’s plowing its way through social media and, quite possibly, making its way right to your company water cooler. And, as if we needed more fuel for the fire, religious awareness (and sometimes, real or perceived religious intolerance) is heightened during the holiday season.
It’s an employer’s perfect [snow]storm.
As put mildly by the Society for Human Resources Management (SHRM), terrorist attacks by Muslim extremists “can incite some employees to question, distrust, retaliate against and even harass Muslim co-workers.”
But as employers well know, there’s this little law called Title VII that prohibits discrimination and harassment in the workplace on the basis of religion. Which means that an employee’s anti-Muslim rant could get his employer sued.
The Equal Employment Opportunity Commission (EEOC) made clear in a December 23, 2015 press releasethat matters involving the discrimination and harassment of Muslim employees will be an enforcement priority. The EEOC has in the past reported that an increasing number of the religious discrimination charges they receive come from Muslims (in 2012, the Muslim share was 20%, the highest by more than double of any other religious group). And the EEOC already has been pursuing litigation (more than 68 such lawsuits since 2010) on behalf of many of these complainants.
For example, in 2012, AutoZone Inc. agreed to pay $75,000 to settle an EEOC lawsuit in which the EEOC alleged on behalf of a Sikh employee that the company had failed to intervene when managers and customers referred to the employee, who wore a turban, as “Bin Laden,” asked him whether he had joined al-Qaida, and made terrorist jokes.
You may also have heard of an EEOC case involving a national apparel retailer in which the Supreme Court held last year that the employer could not refuse to hire a Muslim woman because she wore a religious headscarf in violation of the company’s “look policy.” (That case resolved following the Supreme Court decision.)
So what is an employer to do?
- Is an employer required to proscribe employee discourse involving the arguably controversial positions of some of our presidential candidates?
- Should an employer prevent its employees from attempting to solve the seemingly unsolvable problem of Islamic extremists while on the job? (Even though our leaders should be begging for any good idea they can get . . .)
- How is an employer to balance the not-so-unreasonable fear of another workplace terrorist attack with its legal obligation to prevent religious discrimination and harassment?
- How do you deal with the employee who overdid it on the peppermint schnapps at the holiday party and made a tasteless joke equating his Muslim colleagues with terrorists?
All good questions without any easy answers. (Although, hopefully you’ve already dealt with that last one.)
Looking ahead to the new year, at least where our places of employment are involved, employers should encourage employees to “take a cup o’ kindness yet” and create a workplace based on respect and religious tolerance.
But don’t be dumb about it. Employers also should encourage employees to immediately report any warning signs of the potential for workplace violence (by anyone, regardless of religion). Unless the urgency of the situation would dictate otherwise (which I pray never happens to any of you), employees should not be permitted to take matters into their own hands – that situation is rife with the possibility for unlawful harassment.
As we bid good riddance to 2015 and say hello to 2016, I leave you with the wise words of the great philosopher Oprah Winfrey: “Cheers to a new year and another chance for us to get it right.”
On second thought, don’t try too hard to get it right . . . it makes my job more interesting (and keeps me in business!).