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Don't Let Patriotism Lead to LiabilityWhile Americans have returned to work since 9-11, it is not business as
usual for employers. The World Trade Center and Pentagon attacks have in
some cases led to retaliation against and harassment of minority ethnic
and religious groups, such as Arab Americans and American Muslims. Many of
those engaged in the retaliation and harassment have done so under the
guise of patriotism. Employers who do not act immediately to prevent or
correct retaliation and harassment in the workplace expose themselves to
liability. What is Prohibited?Race, Religion, National Origin, and Ethnicity. Title VII protects individuals against discrimination or harassment in the workplace based on race, religion, national origin, and ethnicity, among other protected characteristics. Under Title VII, discrimination or harassment based on any of the following factors is prohibited:
Employers have a duty to reasonably accommodate the religious practices of employees, so long as the requested accommodation does not cause undue hardship on the employer's business. "Undue hardship" has been found where the requested accommodation would result in discrimination against other employees, more than a de minimis loss of productivity, more than a de minimis increase in costs, or violation of an established seniority system. A written policy and procedure should be adopted regarding religious accommodation requests, and the best time to do that is before a request is made. Immigration Status. Security conscious employers should be careful to avoid discriminating against individuals based on their immigration status. The Immigration Reform and Control Act of 1986 prohibits, among other things, discrimination against legal aliens based on their immigration status. The Immigration Act of 1990 expanded the protections to prohibit retaliation against an individual who files a complaint of discrimination against an employer. Warning by the EEOC. Immediately following 9-11 the EEOC
announced that it would more closely examine claims of discrimination
based on religion or national origin. Employers were encouraged to guard
against discrimination and promote tolerance in the workplace. According
to statistics recently released by the EEOC, the number of complaints
filed with the EEOC in 2001 rose 1.2% to the highest number since 1995.
The biggest single category of complaints was racial discrimination, which
made up 35.8% of all complaints filed. What Should an Employer Do?There is no guaranteed way for an employer to avoid liability in discrimination and harassment claims. However, there are some steps that an employer can take to substantially reduce its exposure. Many of these suggestions seem obvious, but still go unaddressed by some employers. Adopt a Written Policy. Every employer should adopt a comprehensive, written policy that prohibits illegal discrimination and harassment in the workplace. An employer's failure to adopt a policy is frequently cited as grounds for allowing plaintiffs to pursue punitive damages claims in discrimination cases. See, e.g., Anderson v. G.D.C., Inc., No. 01-1086, 2002 U.S. App. LEXIS 2873 (4th Cir. Feb. 25, 2002). If a policy already exists, review and update it as necessary. Adopt a Complaint Procedure. The employer's written policy should contain a procedure for reporting discrimination and harassment and should clearly prohibit retaliation against any employee who makes a complaint. Communicate the Policy Regularly. Adopting an anti-discrimination policy and a complaint procedure is not the end of the employer's obligation. The policy and procedure must be regularly and consistently communicated to employees. Each employee's receipt of the policy and procedure should be documented in writing in the personnel file. Conduct Training Regularly. Employers should also conduct periodic training of managers and supervisors regarding the company's commitment to equal opportunity and to a harassment free workplace. An employer's failure to train its managers about obligations under employment laws has been cited by courts as grounds for allowing an employee to recover punitive damages in discrimination cases. See, e.g., Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771 (7th Cir. 2001). If managers are assigned the duty of receiving complaints, the training should include clear guidance on how that duty is to be discharged. Investigate Complaints and Discipline Violators. When
allegations of discrimination or harassment come to an employer's
attention, whether a complaint is actually made or not, the employer must
act quickly to investigate the facts and enforce its policy. The only
thing worse than not having a policy is not enforcing one. If
investigations are conducted by the employer, a member of management must
be trained to conduct them properly. ConclusionAt a time when President Bush has called on all American's to be alert
for anything that seems "suspicious" and law enforcement
officials are openly defending racial profiling, it is easy for employers
and managers to let down their guard against unlawful discrimination and
harassment in the workplace. The adoption and more diligent enforcement of
anti-discrimination policies and procedures minimizes the likelihood of a
successful discrimination or harassment claim. For more information, contact:
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