February 27, 2017

EEOC targets “backlash discrimination” in its strategic enforcement plan

Religious discrimination and harassment in the workplace is one of the biggest issues facing HR practitioners. In 2016, more than 3,800 charges of job discrimination based upon religion were filed with the US Equal Employment Opportunity Commission (EEOC), making it among the top charges handled by the agency.

Unwelcome comments or conduct against co-workers or job applicants based on their religion not only creates a hostile and abusive work environment, it violates federal law, many state and local laws and can result in costly consequences.

In January, 2017, New York City’s Human Rights Commission charged Pax Assist Inc., a contractor that provides wheelchair assistance to passengers at JFK International Airport, with discriminating against Muslim employees. The alleged charges include repeatedly denying the requests of Muslim workers for break time to pray during Ramadan. Supervisors also allegedly harassed several Muslim workers over a radio system by announcing, “We don’t care about Ramadan” and “We’ll give you a break on our time, not your time.”

The Commission also alleges that the contractor’s inflexible break policy may deter employees of every faith from religious accommodation requests to engage in prayer consistent with their religious beliefs.  The charges carry a fine up to $250,000, and the Commission can award compensatory damages to victims for emotional distress and other benefits.

EEOC’s Focus on Backlash Discrimination
In its updated strategic enforcement plan, the EEOC lists anti-Muslim discrimination as one of its emerging issues of priority. Specifically, the agency said it will focus on “backlash discrimination against individuals who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups.”

Clothing company Abercrombie & Fitch learned this lesson the hard way when it refused to hire a Muslim woman because she wore a hijab (headscarf). The company said the hijab violated their dress code policy, even though the woman did not ask for a religious accommodation to wear it.

In 2015, the US Supreme Court agreed with the EEOC that Abercrombie & Fitch violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on religion and requires employers to reasonably accommodate an employee’s sincerely held religious beliefs or practices. The court held that an employer may not refuse to hire an applicant if the employer was motivated by avoiding the need to accommodate a religious practice.

What Is a “Reasonable” Religious Accommodation?
While each situation is different, generally, a reasonable request for religious accommodation doesn’t pose an undue hardship or burden on the employer or pose a health, security or safety risk to employees, clients, customers or the operation of the business.

Examples of reasonable religious accommodation include:

  • Taking prayer breaks
  • Taking time off for religious holidays
  • Flexible scheduling
  • Wearing religious clothing, such as a headscarf
  • Grooming practices, such as a beard or hair style and length

Traliant Insight
As the workplace becomes increasingly diverse, it’s important for organizations to clearly communicate and demonstrate their commitment to respecting the religious beliefs and practices of all employees. Now is an excellent time to review and update your anti-discrimination and harassment policies and compliance training to ensure managers and supervisors know how to respond to religious accommodation requests and understand their legal and ethical obligations to prevent acts of religious discrimination and harassment.