In the wake of Paris and San Bernandino, the EEOC has issued new “Questions and Answers” for employers concerning workers who are, or are perceived to be, Muslim or Middle Eastern.  The agency issued companion questions and answers for employees.

It’s a timely topic as employers seek to protect all employees’ rights at a time when terrorism, workplace violence, and anti-Muslim rhetoric are the subject of headlines, viral social media posts, and water-cooler conversation.

The EEOC starts with the basics: an employer cannot discriminate based on religion, ethnicity, national origin, or race; must reasonably accommodate religious beliefs unless to do so would impose an undue hardship; and cannot retaliate for discrimination or harassment complaints.

The agency then provides hypothetical scenarios and guidance on hiring and employment decisions; harassment; religious accommodation and background investigations.

Hiring and Other Employment Decisions

The EEOC opines, consistent with prior Guidance on religious garb, that an employer cannot deny an employee a position due to customer preferences. For example, a store cannot refuse to hire a Muslim wearing a hijab as a cashier because customers may be uncomfortable.  Nor can the store assign the employee to a non-customer-facing position.

The EEOC also opines that a temporary agency cannot comply with a client’s request for the agency to either have the employee remove the hijab, or to substitute an alternative temporary employee. The EEOC’s position is that the temporary agency must explain to the client the duty to accommodate the hijab, and if the client still refuses the worker, must reassign the worker to a different assignment at the same pay, and decline to send the client an alternative worker.

Harassment

The EEOC posits various hypotheticals about harassment against employees who are, or may seem to be, Muslim or Middle Eastern, such as a Muslim employee called “ISIS,” or drawn into unwanted discussions of Islam and terrorism, by a coworker.

The EEOC points out that clear, effective policies against harassment, and a confidential reporting mechanism for harassment, are crucial elements of an anti-harassment strategy. When harassment is reported, the employer must take prompt remedial action.  The nature of that remedial action if fact-driven; in one situation, the employer might solve the problem by facilitating a discussion between employees, in others, corrective action such as counseling, a warning, or more severe discipline, may be warranted.

Accommodation

The EEOC notes that accommodations for Muslim employees (like those of other religions) may include time off for religious holidays, or exceptions to dress and grooming codes. The EEOC also offers a hypothetical in which Muslim employees ask to use a conference room for prayer.  While offering little analysis, the agency states that the company may be able to deny the use if the room is needed for business, but that in “many circumstances” allowing the use may not impose an undue hardship.  The EEOC also opines that if normal work breaks are not sufficient, the employer may need to consider the feasibility of longer breaks.  The agency notes that the company should not deny an accommodation based solely on “speculation” that other Muslim employees will seek the same, but should consider the instant request on its merits, making later adjustments as necessary.

Background Investigations

Background checks are a current hot topic for the EEOC. Here, the EEOC states that the employer can impose the same pre-hire background checks imposed on other applicants, but “may not perform background investigations or other screening procedures in a discriminatory manner.”  The agency notes that “security clearance determinations for positions subject to national security requirements under a federal statute or an Executive Order are not subject to review under the equal employment opportunity statutes.”

Key Takeaways

  • The very fact that the EEOC issued this publication speaks to a renewed focus on anti-Muslim discrimination and foreshadows an uptick in litigation in this area.
  • The current climate is an opportunity for employers to take a fresh look at its anti-discrimination and harassment policies, complaint mechanisms, and accommodation practices, to ensure compliance and efficacy.
  • Effective training not only helps prevent litigation, but can assist a defense. Companies should train managers on nondiscriminatory hiring practices, and how to manage employee complaints and accommodation requests.
  • When an employee complains of alleged discrimination or harassment, the employer should investigate promptly, and if a violation is found, take prompt remedial action.
  • The EEOC’s brief guidance does not wrangle with all of the complexities that its hypotheticals raise. Further, states and localities may impose different or additional requirements.  An employer facing such scenarios would be wise to consult employment counsel to help protect employees’ rights while minimizing legal risk.