The San Bernandino Effect: Responding to Rising Islamophobia in Your Workplace. Meredith S. Jeffries

Transcription

1 The San Bernandino Effect: Responding to Rising Islamophobia in Your Workplace Meredith S. Jeffries

2

3 OBJECTIVES Explore the evidence of increased fear of and hostility towards Muslims and persons of Arab descent in the workplace Review Title VII s prohibitions against discrimination and harassment based on religion, national origin, and race as they impact Muslims and persons of Arab descent in the workplace Discuss the employer s obligations to accommodate Muslim religious practices in the workplace Explore an employer s rights and/or duties to monitor for radicalized employees and/or prevent workplace violence, and the line between Islamophobia and reasonable hiring and employee retention policies

4 JUSTIFIABLE CONCERN OR ISLAMOPHOBIA? You are the Human Resources Director for XYZ Corp. Susan, a supervisor at XYZ Corp., comes to your office to tell you that she is concerned about Omar Shadid, one of your most valuable employees. Shadid returned two weeks ago from a two week vacation, during which he visited family in Saudi Arabia. Since that time, Shadid has been extremely quiet at work (contrary to his normally cheerful demeanor). He has stopped joining colleagues for lunch, and instead has been seen observing his daily Muslim prayers in the company courtyard during his lunch hour. Today, a co-worker reported to Susan that he had seen Shadid frequenting a website that the co-worker believed to be a radical Jihadist site.

5

6 Trump on Muslims and Syrians

7

8 TITLE VII 2000E 2. UNLAWFUL EMPLOYMENT PRACTICES (a) Employer practices It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual s race, color, religion, sex, or national origin.

9 PRESS RELEASE EEOC ISSUES A STATEMENT BY CHAIR JENNY R. YANG TO ADDRESS WORKPLACE DISCRIMINATION IN THE WAKE OF TRAGIC EVENTS AT HOME AND ABROAD, EEOC URGES EMPLOYERS AND EMPLOYEES TO BE PARTICULARLY MINDFUL OF INSTANCES OF HARASSMENT, INTIMIDATION, OR DISCRIMINATION IN THE WORKPLACE AGAINST VULNERABLE COMMUNITIES.

10 Prima Facie case Failure to Reasonably Accommodate Religious Practice or Belief (1) Employee has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; and (3) he or she was disciplined for failure to comply with the conflicting employment requirement. Burden then shifts to the Employer. To satisfy its burden, ER must demonstrate either (1) that it provided the plaintiff with a reasonable accommodation for his or her religious observances; or (2) that such accommodation was not provided because it would have caused an undue hardship that is, it would have resulted in more than a de minimus burden on the employer.

11 Customer preferences and company image are never a reasonable basis for refusing to exempt employees from uniform or grooming policies that conflict with bona fide religious beliefs and practices. EEOC S POSITION

12 The Muslim Prep Cook Ali, a devout Sunni Muslim and a food services worker in a nursing home cafeteria, sought an accommodation to permit him to wear a beard and not wear a hat, in contravention of the nursing home s policy that food service employees shave their beards and wear a hat to keep their hair back. According to Ali, it is a major sin in the Sunni Muslim religion to not grow and maintain a beard.

13 PRIMA FACIE CASE HOSTILE WORKPLACE ENVIRONMENT Membership in protected class Subjected to unwelcome harassment The harassment was based on protected class Affecting a term and condition of employment So severe or pervasive that it altered conditions of employment and created abusive work environment Both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive AND Plaintiff found it to be so Employer Responsibility

14 NEGLIGENT HIRING AND RETENTION North Carolina courts typically recognize a tort claim for an employer s negligent hiring or retention of employees where a plaintiff can establish: (1) a specific bad act by the employee in question; (2) the employee s inherent unfitness or previous specified acts of negligence from which incompetence can be inferred; (3) the employer s actual or constructive notice of the employee s unfitness; and (4) injury resulting from such incompetence.

15 JUSTIFIABLE CONCERN OR ISLAMOPHOBIA? You are the Human Resources Director for XYZ Corp. Susan, a supervisor at XYZ Corp., comes to your office to tell you that she is concerned about Omar Shadid, one of your most valuable employees. Shadid returned two weeks ago from a two week vacation, during which he visited family in Saudi Arabia. Since that time, Shadid has been extremely quiet at work (contrary to his normally cheerful demeanor). He has stopped joining colleagues for lunch, and instead has been seen observing his daily Muslim prayers in the company courtyard during his lunch hour. Today, a co-worker reported to Susan that he had seen Shadid frequenting a website that the co-worker believed to be a radical Jihadist site.

16 EMPLOYEE PRIVACY Should we be monitoring our employees on line behavior?

17 PREVENTING WORKPLACE VIOLENCE Adopt a workplace violence policy and communicate it to employees. Provide supervisor training on preventing and reacting to violence in the workplace. Focus on CONDUCT not class. Foster a climate of trust and respect among employees. Seek assistance from outside resources where needed. Implement non-discriminatory employee monitoring procedures. Provide resources for employees in crisis. Consistently enforce behavioral standards and discipline. Consider violent crime conviction background checks.

18 LOOK FOR WARNING SIGNS Increasing belligerence Threats to co-workers Hypersensitivity to criticism Recent acquis ion of /fascination with weapons Preoccupation with violent themes Admiration of recently publicized violent events Outbursts of anger Homicidal/Suicidal comments or threats Noticeable changes in behavior U.S. Department of Justice

19 Meredith S. Jeffries Member Alexander Ricks PLLC 4601 Park Road Suite 580 Charlotte, NC QUESTIONS?