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The tragic events of the morning of Sept. 11, 2001, forever changed America and the American workplace. Many workers felt the impact of that day while at their job sites during those first fateful moments when the planes struck the Twin Towers and the Pentagon. Unfortunately, the immediate aftershock of Sept. 11 also reached the American workplace in a wave of backlash discrimination against innocent individuals who are, or are perceived to be, Muslim, Arab, Afghani, Middle Eastern, South Asian or Sikh. As the federal agency that enforces Title VII of the Civil Rights Act of 1964 — the federal statute that prohibits workplace discrimination based on religion and national origin — the U.S. Equal Employment Opportunity Commission plays a unique role in addressing the misdirected hostility against innocent individuals in our nation’s workplaces. Anticipating this type of discrimination, the EEOC moved quickly to coordinate with its sister federal agencies, including the U.S. Department of Justice and U.S. Department of Labor, to utilize education, outreach and enforcement to help make employers, employees and job applicants more aware of the potential for backlash. The message for in-house counsel, employers and managers has been a simple one: The events of Sept. 11 cannot be used to justify discrimination against employees simply because of their religion, national origin or appearance. In these challenging times, in-house attorneys must take the lead in upholding individual freedoms and guarding against unlawful discrimination by battling negative stereotypes. Shortly after Sept. 11, the EEOC began separately coding and tracking discrimination related to the backlash. It was not uncommon to receive charges giving accounts of harassment and firings simply because of a person’s Arab ancestry or Muslim faith, or even because they were incorrectly perceived to belong to one of these groups. Cases involved offensive workplace conduct such as the taunting of co-workers who were called terrorists or likened to Osama bin Laden. Sometimes, firings followed in the wake of the taunts. Instances of religious bias and national origin discrimination increased sharply in the year immediately after Sept. 11, 2001. Of the hundreds of post-Sept. 11 backlash discrimination charges filed with the EEOC as of July 11, 2004, the agency issued formal letters of determination finding a Title VII violation in 110 cases. The agency reached settlements in 117 pending cases prior to any litigation. It issued notices of rights to sue in another 87 investigations, allowing charging parties to pursue private claims prior to completion of the agency’s investigation. Identified victims of the national origin and religion backlash recovered $2.85 million in monetary benefits by using the EEOC’s assistance in attaining resolution of their problems without resorting to litigation. Even today, against the backdrop of the ongoing war and terrorism, the EEOC continues to urge employers — through technical assistance programs and other educational initiatives — to promote cross-cultural awareness and understanding so as to prevent discriminatory treatment of employees of Middle Eastern ancestry or who practice the Muslim faith. TO-DO LIST In-house counsel should heed the following advice when advising their company on employment decisions: � Clearly communicate to all managers and employees that harassment based upon national origin or religion will not be tolerated; � Have effective and clearly communicated written policies and procedures for addressing complaints of national origin or religious discrimination and harassment; � Be broad-minded regarding employees’ practice of religion in the workplace, so long as it does not work an undue hardship on the business; � Be broad-minded in allowing such attire as the hijab (the head scarf worn by some Muslim women) in the workplace; � Don’t impose more restrictive workplace policies on some national origin (or religious) groups than others; � Don’t base the following employment decisions on national origin or religion: recruitment, hiring, promotion, transfer, wages and benefits, work assignments, leave, training and apprentice programs, discipline, layoff and termination; � Don’t farm out discriminatory recruitment duties to referring agencies such as temporary agencies, as they may be jointly liable with the employer under Title VII; � Use a variety of recruitment and hiring techniques such as job fairs, open houses, professional associations, search firms, internships and scholarship programs to cast a wide net for talent in a diverse pool of job seekers; � Don’t rely upon co-worker, customer, or client discomfort or preference as the basis for a discriminatory employment decision; � Establish written objective criteria tied to business needs for evaluating candidates for hire, promotion, discipline, demotion and discharge and apply those criteria consistently to all candidates; � Prevent or correct harassment based upon national origin or religion immediately after it comes to the company’s attention. Hold regular meetings with supervisory staff to make clear that complaints of harassment need to be brought to the proper personnel as soon as possible; � Do not discipline, fire, or refuse to hire an employee or applicant based upon their linguistic characteristics unless their accent will materially interferes with their ability to do their job or the job for which they’re being considered; � Beware of adopting an English-only policy in the workplace; � Remember that, with few exceptions, Title VII covers foreign employers doing business in the United States; � Title VII generally prohibits discrimination against U.S. citizens by American employers operating overseas; and � A company that receives a charge of discrimination from the EEOC should respond within the given time frame and provide the information requested, even if in-house lawyers believe the charge is frivolous. It is wise to present any facts and data the company believes show that the allegations are incorrect or do not amount to a violation of the law. Bill Backhaus is a senior trial attorney in the Dallas District Office of the Equal Employment Opportunity Commission. He has litigated cases under Title VII, the Age Discrimination in Employment Act and the Americans With Disabilities Act. Further information about the EEOC, including post-9/11 backlash discrimination, is available on the agency’s Web site at www.eeoc.gov. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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