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The EEOC has focused a great deal of its energy in the past 15 months on preventing and, if necessary, punishing national origin discrimination as a backlash to the Sept. 11, 2001, terrorist attacks. The EEOC’s recent guidelines to be included in the EEOC Compliance Manual are a further extension of this effort. Shortly after Sept. 11, the EEOC and the Departments of Justice and Labor issued a joint statement against “incidents of harassment, discrimination and violence in the workplace against individuals who are, or are perceived to be, Arab, Muslim, Middle Eastern, South Asian or Sikh.” The commission and the departments encouraged victims of such discrimination to come forward with complaints that would be investigated and resolved.A number of the early claims of post-9/11 discrimination have worked their way through the EEOC’s investigative process and are now being brought to suit or are being resolved. In November, the EEOC announced that it had reached a pre-litigation settlement with a North Carolina medical practice for creating a hostile work environment based upon religious discrimination. RELIGIOUS DISCRIMINATION AGAINST HEAD SCARF Karen Crisco worked for the medical clinic as a licensed practical nurse for three years when, on Sept. 9, 2001, she claims to have converted to Islam. She was romantically involved with a Muslim man at the time. Shortly after her conversion, and shortly after Sept. 11, she wore a Hijab, a religious head scarf, to work one day. According to the EEOC’s press release, the clinic told her to remove the scarf because she had frightened “numerous patients.” Crisco complained to the EEOC, which investigated the charge. Following the investigation, the commission found that she had been harassed and constructively discharged based upon her religious beliefs. The case settled before litigation for $35,000, an offer of reinstatement and the clinic’s agreement to conduct EEO training. A few months earlier, the commission announced that it had filed suit on behalf of an American citizen of Palestinian descent who alleged that he had been harassed and his employment terminated based upon his national origin shortly after the Sept. 11 attacks. The suit was filed against Chromalloy Castings, a Tampa, Fla.-based manufacturer of precision investment castings for the aerospace industry. GUIDELINES PROHIBIT RELIANCE ON CUSTOMER’S COMPLAINTS The EEOC’s recently issued guidance reinforces Title VII’s well-known prohibitions against discrimination against any national origin group. It is hardly surprising that Arab groups, in particular, are used frequently as examples of prohibited conduct in the workplace.One of the issues addressed by the commission is an extension of the Crisco case discussed above. That is, an employer says that it has no problem with a receptionist of, for example, Middle Eastern descent, but clients have said that they are uncomfortable in light of current events. The guidelines clearly reject this explanation as a reason for any adverse employment action: “employers may not rely on coworker, customer or client preference as the basis for a discriminatory action. If an employer takes an action based on the discriminatory preferences of others, the employer is also discriminating.” The guidelines also reject the transfer of the receptionist, used in the example, to the mailroom, so as to remove her from public interaction. Unlawful assignment based upon national origin is clearly prohibited as well. SECURITY TESTS MUST BE APPLIED ACROSS THE BOARD Many employers, particularly those in safety-sensitive industries, have adopted security requirements for their employees. The guidelines explain that, while there are circumstances where security requirements are a valid employment criteria, “such requirements must be adopted for nondiscriminatory reasons and applied in a nondiscriminatory manner.” The example given by the commission is that an employer may require applicants or employees of Middle Eastern descent to undergo only the same background investigation as applicants or employees of other nationalities. ACCENTS AND FLUENCY CAN BE CONSIDERED One of the areas that has historically generated a great deal of litigation is language requirements — not just “English-only rules,” but whether an employer can legitimately take an employee’s or applicant’s foreign accent or ease with which an employee uses English, into consideration in the employment context. The commission states that “an employment decision based on foreign accent does not violate Title VII if … the accent interferes with the ability to perform job duties.” This assessment, of course, must be made on a case-by-case basis, looking at the specific duties of the job and the accent’s effect on the ability to do the job in question. Only where the accent “materially interferes” with the ability to communicate should it be a deciding factor. The example used is where a hotel concierge’s accent consistently leads to complaints that he cannot be understood in providing directions. In this scenario, the hotel would be justified in transferring the concierge to a position where he did not significantly interact with the public. As for English-fluency requirements, the guidelines provide that there are times when an employee’s or applicant’s lack of proficiency in English may interfere with job performance to a point where the employer can remove, or not hire, the employee/applicant in question. The guidelines and the EEOC’s litigation reinforce the mandates of Title VII in light of current events. As President Bush said shortly after Sept. 11, “We must be mindful that as we seek to win the war [against terrorism], we treat Arab Americans and Muslims with the respect they deserve.” The commission’s mandate, therefore, remains unchanged and its recent actions have helped to demonstrate that. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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