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As the war on terrorism and the situation in Iraq intensifies, and as it appears that the U.S. military will remain actively involved in the Middle East for at least the foreseeable future, employers are affected in many ways. Among the most significant has been the increase in the number of allegations of religious discrimination, particularly discrimination directed at Muslim Americans. Anticipating the possibility of such an increase, three days after the Sept. 11 attacks, Cari M. Dominguez, chairwoman of the U.S. Equal Employment Opportunity Commission (EEOC), specifically directed employers to be alert to discrimination directed at Arab-American and Muslim employees. For fiscal year 2002, the total number of charges filed with the EEOC alleging private-sector employment discrimination increased by 4.5%. Despite Dominguez’s efforts, during the same period, the number of charges alleging religious discrimination increased by 21%. See www.eeoc.gov/press/2-6-03.html. This increase was significantly greater than that in any of the other categories monitored by the EEOC. Other statistics indicate an even more profound increase in the number of allegations filed by Muslim Americans. From Sept. 11, 2001, to Sept. 10, 2002, the EEOC received 706 charges of discrimination characterized as based on “Religion-Muslim.” For the equivalent period one year earlier, the EEOC received 323 such charges. Since Sept. 11, 2001, more than 800 charges alleging post-9/11-backlash discrimination have been filed with the EEOC. See www.eeoc.gov/ origin/z-stats.html. Recent examples of cases brought by the EEOC Allegations of unlawful discrimination based upon religious practice or affiliation often result in costly and time-consuming litigation. As the following recent examples show, often employers accused of such discrimination find themselves litigating against the EEOC and facing the accompanying press coverage. On Feb. 28, 2002, the EEOC announced the settlement of a religious-discrimination and retaliation lawsuit that it filed in New York on behalf of 11 Muslim employees of a Manhattan branch of the Whole Foods grocery chain. The EEOC claimed that the operator of the store prevented female cashiers from wearing burkas while they worked and made it difficult for the plaintiffs to pray at the store. As part of the settlement, the employer agreed to pay $715,000. On March 19, 2003, the EEOC announced the settlement of a lawsuit filed in California on behalf of four Pakistani-American employees of Stockton Steel. The EEOC’s complaint included allegations that the employees were ridiculed while they performed their daily prayer obligations and were denied job opportunities due to their religion and national origin. As part of the two-year consent decree that resolved the suit, Stockton Steel agreed to pay the employees $1.11 million; to implement more strict disciplinary policies for supervisors who engage in discrimination, harassment or retaliation; and to implement a wide-ranging training program. On July 17, 2003, the EEOC filed a lawsuit in Missouri accusing Trans States Airlines Inc., a regional commuter airline, of discriminating against a pilot because of his Islamic religious beliefs and Arabic appearance. The EEOC alleges that the pilot’s employment was unjustifiably terminated one week after the Sept. 11 attacks. The suit seeks reinstatement, back pay, compensatory and punitive damages and a permanent injunction against future discrimination. This was the sixth lawsuit filed by the EEOC alleging post-9/11-backlash discrimination. See www.eeoc.gov/ press/7-17-03a.html. As the United States’ involvement in Iraq continues, and acts of terrorism directed at Americans abroad remain a threat, the number of allegations of workplace religious discrimination may remain high. Accordingly, employers should be aware of this danger, understand their legal obligations and take action to protect themselves against potential claims before they arise. Under Title VII of the Civil Rights Act of 1964, which protects employees regardless of citizenship status, it is unlawful for an employer “to fail or refuse to hire or [to] discharge any individual, or otherwise to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s . . . religion.” 42 U.S.C. 2000e-2(a)(1). The statute defines religion to include “all aspects of religious observance and practice, as well as belief.” The 2d U.S. Circuit Court of Appeals interpreted that “the broad aim of Title VII” is to ensure that “employees who are similarly situated are not to be treated differently simply because they differ from one another with regard to their religious beliefs or practices.” Cosme v. Henderson, 287 F.3d 152, 157 (2d Cir. 2002). A plaintiff must establish a prima facie case of religious discrimination under Title VII by proving that “(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; (3) he or she was disciplined for failure to comply with the conflicting employment requirement.” Philbrook v. Ansonia Bd. of Education, 757 F.2d 476, 481 (2d Cir. 1985), aff’d and remanded on other grounds, 479 U.S. 60 (1986). If the employee meets those requirements, the burden shifts to the employer, which must show either that it made a good-faith effort to provide a reasonable accommodation for the employee’s religious beliefs or practices, or that it could not provide such an accommodation without an undue hardship. The employer may avoid liability and demonstrate an undue hardship by establishing that providing a reasonable accommodation would result in more than a de minimis cost. Trans World Airlines Inc. v. Hardison, 432 U.S. 63, 84 (1977). The employer is under no obligation to provide the exact reasonable accommodation requested by the employee. Philbrook, 479 U.S. at 68 (1986). Most states have enacted statutes protecting against religious discrimination in employment. Many of them were modeled after Title VII. After Sept. 11, some found it necessary to expand the protections offered by these laws. The New York State Human Rights Law once required employers to accommodate only an employee’s observance of a sabbath or holy day. With recent amendments, this protection has been expanded to include any “sincerely held practice of [an employee's] religion.” N.Y. Executive Law � 296(10)(a)(2003). In perhaps the most significant revision, the statute now defines an “undue hardship” as “an accommodation requiring significant expense or difficulty.” Id. at � 296(10)(d). This is a considerably more demanding standard to reach than the de minimis cost standard applied by Title VII. Employers located outside of New York should also review the requirements imposed by their states’ laws. It is important to recognize that employers have significant flexibility when attempting to accommodate an employee’s religious beliefs or practices. However, before deciding on a possible accommodation, an employer must have a clear understanding of what the requesting employee needs and must determine what is reasonable. In this regard, it is particularly important for an appropriate management representative to talk directly to the employee. After management understands the particular religious obligation at issue, a determination can be made as to whether the request conflicts with an existing work rule or policy and if an exception can be granted without undue hardship. The employer should be sure that everyone who interacts with the requesting employee does so respectfully. Responding to a request fairly and reasonably can make a big difference in the employee’s attitude and the likelihood of resolution; if the dispute cannot be resolved, it will represent the employer favorably at litigation. Updating policy, providing diversity training It is always good advice to review and update employment policies periodically. Employers should ensure that these policies are broadly disseminated and clearly defined, and that they prohibit all types of discrimination and explain the consequences of discriminatory behavior. Employees should be encouraged to report promptly any inappropriate behavior to their choice of managers selected from a list provided by the employer. Employers may also find it effective to provide employees with diversity training and training that defines appropriate workplace behavior. When appropriate, employers should consider making counseling available to those employees who they suspect might direct anger or frustration arising from world events at their co-workers. Managers should be particularly aware of potential discrimination directed against Muslims, Arab-Americans or employees perceived to belong to those groups. Effective management training would help to ensure that managers respond effectively to initial complaints and resolve disputes before they grow to be more disruptive. If the months that followed Sept. 11 prove to be an accurate guide, recent conflict in the Middle East may spark a further increase in the number of allegations of religious discrimination in the workplace. The EEOC has already shown that it is concerned with the rise in these claims and has directed significant resources at preventing further charges and resolving those that have already been filed. State laws may also reflect recent revisions that provide additional protection against religious discrimination. Considering this recent focus at the federal and state levels and the substantial liability that employers may face, it is well worth the effort to attempt to prevent allegations of religious discrimination from arising. Michael Starr is a partner in the labor and employment group in the New York office of Washington’s Hogan & Hartson. He can be reached at [email protected]. Adam J. Heft is an associate in that group, also in the New York office. He can be reached at [email protected].

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