Job Discrimination Against Muslims

Even if there has been an increase in discrimination claims, the EEOC's apparent concern about bias en masse against Muslims simply has not come true. Muslims, Arabs, and other people of eastern descent living in the United States have not seen the social ostracism experienced by these groups in other countries.

European Discrimination

Most recently, for example, effective April 11, 2011, France became the first European country to pass legislation virtually outlawing women from wearing the niqab (a full-face veil worn by Muslim women to cover their faces) anywhere outside of a private home, including at the workplace.

Women are only permitted to wear the niqab during worship in a religious place or as a passenger in a private car, although traffic police may stop the driver if an officer believes the driver does not have a clear “field of vision” while driving. Women breaking this law will be fined about '150 and will have to take a citizenship course to remind them of the secular values in France and of gender equality.

Earlier, in 2004, France passed a law banning school children from wearing head scarves in public schools. France also prohibited its public schools from displaying other Islamic religious symbols. The French asserted that this would enforce its tradition of strict secularism. Of course, the policy alienated France's Muslim population and resulted in an outcry from Muslims, who protested in demonstrations in French cities and around the world.

France has not been alone. On April 4, 2011, a Dutch court held that a Catholic school could ban a 15-year-old girl from wearing a head scarf to school and that such a ban did not constitute religious discrimination. In doing so, the court vacated a contrary finding by the Dutch Equal Opportunity Commission.

The Belgian parliament voted in April 2010 to ban women from wearing a burka. In the German state of Baden-Werttemberg, public school teachers have been banned from wearing headscarves since 2004. And even in Quebec, public employees may not wear a niqab, nor may people seeking government services.

One commentator notes that, beginning in the 1990s, numerous European countries passed laws “which emphasize, not the need for a multicultural society, but rather the need for immigrants to embrace” the existing culture, “and to assimilate to a common set of values.” According to a conservative German political figure, “[a]nyone coming here must respect our constitution and tolerate our Western and Christian roots.”

'Harsh Discourse' and Unemployment

There has been similar “harsh discourse in relation to Muslim immigration” in Belgium, France, the UK, the Netherlands, and Germany. In contrast, in Italy and Spain, “these countries have only recently become net countries of immigration and thus do not currently have such developed discourses or policies in relation to cultural pluralism.” (See Allen Stoddard, “Immigration and Islam in Europe,” EuroIslam.Info (2007), available at www.euro-islam.info/key-issues/immigration/.)

Statistics show that Muslim workers in Europe are more likely to be unemployed than workers of other religious groups. The unemployment rate among British Muslim males has been as much as three times the unemployment rate for other religious faiths. (See Muslim unemployment rate highest, Office for National Statistics (UK), 2004, available at www.statistics.gov.uk/cci/nugget.asp?id=979 (based on the Annual Population Survey).) A 2010 study conducted by researchers at Stanford University found that Muslim job applicants in France with a traditionally Christian first name were more than two-and-a-half times more likely to receive a response from an employer than the identical applicant with a Muslim name. (See Steve Connor, “Employers discriminate against Muslims, study finds,” The Independent, Nov. 23, 2010.) The study seeks to expand into the UK to test whether the perceived religious affiliation of a name will produce a result similar to that in France.

In the United States

Of course, the United States is not without its own examples of government action that have been perceived as reflecting an anti-Islamic bias. Most notably, the recent Senate Judiciary hearings on terrorism chaired by New York Republican Peter King in March 2011, received its share of criticism that the hearings reflected bias against Muslims. And of course, the controversial (and, some say, confrontational) effort to place a mosque near the former site of the World Trade Center resulted in angry demonstrations around the country.

Americans seem to agree that Muslims may face more discrimination than other religious groups: A 2009 Pew Research Center poll noted that, eight years after the 9/11 attacks, Americans in fact perceived this to be the case. (See “Muslims Widely Seen as Facing Discrimination,” Pew Research Center For The People & The Press, Sept. 9, 2009, available at http://people-press.org/2009/09/09/muslims-widely-seen-as-facing-discrimination/.) Nevertheless, broad anti-Muslim sentiments, anticipated by the EEOC immediately after 9/11, simply have not risen to the level seen in Europe, where state-imposed “secularism” has targeted the Muslim faith and its traditional practices.

Minimizing Discrimination

Although the U.S. has not experienced discrimination and social ostracism at the level of Europe, U.S. employers must continue to be vigilant and address discrimination and harassment directed toward Arab and Muslim workers before they become problems that could expose companies to financial and reputational damages. The recent killing of Osama bin Laden may make this vigilance all the more important.

In late 2008, the EEOC updated its Compliance Manual on Religious Discrimination. (See EEOC Compliance Manual, ' 12, Religious Discrimination, available at www.eeoc.gov/policy/docs/religion.html (last updated July 22, 2008).) The manual provides “Employer Best Practices” to reduce the risk of making discriminatory employment decisions, and provides examples of illegal religious discrimination in the workplace based on real cases. It provides a number of examples of alleged bias against Muslim, Sikhs, and Hindus, as well as Christians, Jews, and atheists. Employers should consider utilizing this tool to help develop strategies and training to prevent workplace harassment and discrimination.

Employers should also assess their policies on harassment and discrimination. These need to include a clear explanation of prohibited conduct, with examples, and a clearly defined, confidential internal mechanism to report any incidents of prohibited and inappropriate conduct. All employees should receive a copy of the policy, and employers should provide periodic reminders of these policies.

Of course, employers must also provide periodic training and education to their employees on what actions constitute harassment and discrimination. Training for managers should specifically focus on conflict resolution, monitoring conduct in the workplace (including telephone and e-mail communications), handling requests for religious accommodation, and hiring and termination procedures.

Accommodating religious practices requires that employers make a good-faith effort to accommodate the religious belief. Employers should be thorough in considering and documenting any request for an accommodation, and ask detailed questions to separate an employee's request to accommodate a religious practice from general requests to accommodate a personal preference. Employers should consider all of the options they have to create a religious accommodation, including modifying schedules and requirements, permitting employees to transfer to positions that reduce the potential for conflict with religious observances, and having employees use vacation, personal days or unpaid leave when religious observances conflict with scheduled work time.

Conclusion

In the U.S., our emphasis on the value of diversity, coupled with our history of welcoming immigrants from around the world, have served to tamp down intolerance based on different religious practices. Employers here have long recognized the value of inclusive employment practices. That, and the historical ability of immigrants here to successfully integrate into U.S. society, are the likely reasons for this relative stability ' and also probably explain why the EEOC's predictions have not quite come true.

Philip M. Berkowitz, a member of this newsletter's Board of Editors, is a shareholder in Littler Mendelson's New York City office, and U.S. practice group leader of the firm's international employment law practice. Kristen M. O'Connor, an associate in the same office, assisted in the preparation of this article, which also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

After Sept. 11, 2001, the Equal Employment Opportunity Commission (EEOC) forecast that Arabs and Muslims would file more workplace discrimination and harassment complaints. A mere three days after the 9/11 attacks, the EEOC ' evidently expecting the worst ' issued a press release calling on employers (and employees) across the nation to “promote tolerance and guard against unlawful workplace discrimination based on national origin or religion.” (See Press Release, EEOC, EEOC Chair Urges Workplace Tolerance in Wake of Terrorist Attacks (Sept. 14, 2001), available at www.eeoc.gov/eeoc/newsroom/ release/9-14-01.cfm.)The EEOC reminded employers to reiterate their anti-discrimination policies, provide training and counseling, communicate how to address workplace discrimination and harassment, and encourage employees to report improper conduct.

Of course, it is natural to expect these types of claims would be filed in the wake of such a calamitous event. And in fact, there has been an increase in the number of religious and national origin discrimination charges filed by Muslim, Arab, South Asian, and Sikh workers in the 10 years since 9/11. During 2010, the EEOC received 3,790 charges of religious discrimination, nearly double the number of charges in 2000. (The EEOC received 1,939 charges alleging religion-based discrimination in 2000. See EEOC Enforcement & Litigation Statistics, Religion-Based Charges, 1997-2010, available at www1.eeoc.gov//eeoc/statistics/enforcement/religion.cfm?renderforprint=1.)

The number of national origin charges filed has also increased from 7,792 in 2000 to 11,304 in 2010. (See EEOC Enforcement & Litigation Statistics, National Origin-Based Charges, 1997-2010, available at www.eeoc.gov/eeoc/statistics/enforcement/origin.cfm.) In fiscal year 2009, the EEOC received a record-breaking 803 claims from Muslim workers, a 20% increase from 2008.

Even if there has been an increase in discrimination claims, the EEOC's apparent concern about bias en masse against Muslims simply has not come true. Muslims, Arabs, and other people of eastern descent living in the United States have not seen the social ostracism experienced by these groups in other countries.

European Discrimination

Most recently, for example, effective April 11, 2011, France became the first European country to pass legislation virtually outlawing women from wearing the niqab (a full-face veil worn by Muslim women to cover their faces) anywhere outside of a private home, including at the workplace.

Women are only permitted to wear the niqab during worship in a religious place or as a passenger in a private car, although traffic police may stop the driver if an officer believes the driver does not have a clear “field of vision” while driving. Women breaking this law will be fined about '150 and will have to take a citizenship course to remind them of the secular values in France and of gender equality.

Earlier, in 2004, France passed a law banning school children from wearing head scarves in public schools. France also prohibited its public schools from displaying other Islamic religious symbols. The French asserted that this would enforce its tradition of strict secularism. Of course, the policy alienated France's Muslim population and resulted in an outcry from Muslims, who protested in demonstrations in French cities and around the world.

France has not been alone. On April 4, 2011, a Dutch court held that a Catholic school could ban a 15-year-old girl from wearing a head scarf to school and that such a ban did not constitute religious discrimination. In doing so, the court vacated a contrary finding by the Dutch Equal Opportunity Commission.

The Belgian parliament voted in April 2010 to ban women from wearing a burka. In the German state of Baden-Werttemberg, public school teachers have been banned from wearing headscarves since 2004. And even in Quebec, public employees may not wear a niqab, nor may people seeking government services.

One commentator notes that, beginning in the 1990s, numerous European countries passed laws “which emphasize, not the need for a multicultural society, but rather the need for immigrants to embrace” the existing culture, “and to assimilate to a common set of values.” According to a conservative German political figure, “[a]nyone coming here must respect our constitution and tolerate our Western and Christian roots.”

'Harsh Discourse' and Unemployment

There has been similar “harsh discourse in relation to Muslim immigration” in Belgium, France, the UK, the Netherlands, and Germany. In contrast, in Italy and Spain, “these countries have only recently become net countries of immigration and thus do not currently have such developed discourses or policies in relation to cultural pluralism.” (See Allen Stoddard, “Immigration and Islam in Europe,” EuroIslam.Info (2007), available at www.euro-islam.info/key-issues/immigration/.)

Statistics show that Muslim workers in Europe are more likely to be unemployed than workers of other religious groups. The unemployment rate among British Muslim males has been as much as three times the unemployment rate for other religious faiths. (See Muslim unemployment rate highest, Office for National Statistics (UK), 2004, available at www.statistics.gov.uk/cci/nugget.asp?id=979 (based on the Annual Population Survey).) A 2010 study conducted by researchers at Stanford University found that Muslim job applicants in France with a traditionally Christian first name were more than two-and-a-half times more likely to receive a response from an employer than the identical applicant with a Muslim name. (See Steve Connor, “Employers discriminate against Muslims, study finds,” The Independent, Nov. 23, 2010.) The study seeks to expand into the UK to test whether the perceived religious affiliation of a name will produce a result similar to that in France.

In the United States

Of course, the United States is not without its own examples of government action that have been perceived as reflecting an anti-Islamic bias. Most notably, the recent Senate Judiciary hearings on terrorism chaired by New York Republican Peter King in March 2011, received its share of criticism that the hearings reflected bias against Muslims. And of course, the controversial (and, some say, confrontational) effort to place a mosque near the former site of the World Trade Center resulted in angry demonstrations around the country.

Americans seem to agree that Muslims may face more discrimination than other religious groups: A 2009 Pew Research Center poll noted that, eight years after the 9/11 attacks, Americans in fact perceived this to be the case. (See “Muslims Widely Seen as Facing Discrimination,” Pew Research Center For The People & The Press, Sept. 9, 2009, available at http://people-press.org/2009/09/09/muslims-widely-seen-as-facing-discrimination/.) Nevertheless, broad anti-Muslim sentiments, anticipated by the EEOC immediately after 9/11, simply have not risen to the level seen in Europe, where state-imposed “secularism” has targeted the Muslim faith and its traditional practices.

Minimizing Discrimination

Although the U.S. has not experienced discrimination and social ostracism at the level of Europe, U.S. employers must continue to be vigilant and address discrimination and harassment directed toward Arab and Muslim workers before they become problems that could expose companies to financial and reputational damages. The recent killing of Osama bin Laden may make this vigilance all the more important.

In late 2008, the EEOC updated its Compliance Manual on Religious Discrimination. (See EEOC Compliance Manual, ' 12, Religious Discrimination, available at www.eeoc.gov/policy/docs/religion.html (last updated July 22, 2008).) The manual provides “Employer Best Practices” to reduce the risk of making discriminatory employment decisions, and provides examples of illegal religious discrimination in the workplace based on real cases. It provides a number of examples of alleged bias against Muslim, Sikhs, and Hindus, as well as Christians, Jews, and atheists. Employers should consider utilizing this tool to help develop strategies and training to prevent workplace harassment and discrimination.

Employers should also assess their policies on harassment and discrimination. These need to include a clear explanation of prohibited conduct, with examples, and a clearly defined, confidential internal mechanism to report any incidents of prohibited and inappropriate conduct. All employees should receive a copy of the policy, and employers should provide periodic reminders of these policies.

Of course, employers must also provide periodic training and education to their employees on what actions constitute harassment and discrimination. Training for managers should specifically focus on conflict resolution, monitoring conduct in the workplace (including telephone and e-mail communications), handling requests for religious accommodation, and hiring and termination procedures.

Accommodating religious practices requires that employers make a good-faith effort to accommodate the religious belief. Employers should be thorough in considering and documenting any request for an accommodation, and ask detailed questions to separate an employee's request to accommodate a religious practice from general requests to accommodate a personal preference. Employers should consider all of the options they have to create a religious accommodation, including modifying schedules and requirements, permitting employees to transfer to positions that reduce the potential for conflict with religious observances, and having employees use vacation, personal days or unpaid leave when religious observances conflict with scheduled work time.

Conclusion

In the U.S., our emphasis on the value of diversity, coupled with our history of welcoming immigrants from around the world, have served to tamp down intolerance based on different religious practices. Employers here have long recognized the value of inclusive employment practices. That, and the historical ability of immigrants here to successfully integrate into U.S. society, are the likely reasons for this relative stability ' and also probably explain why the EEOC's predictions have not quite come true.

Philip M. Berkowitz, a member of this newsletter's Board of Editors, is a shareholder in Littler Mendelson's New York City office, and U.S. practice group leader of the firm's international employment law practice. Kristen M. O'Connor, an associate in the same office, assisted in the preparation of this article, which also appeared in the New York Law Journal, an ALM sister publication of this newsletter.