As demonstrated by recent cases filed by the EEOC, employers have significant exposure when it comes to managing diversity in the workplace. In a recently filed case against clothing retailer Abercrombie & Fitch, the plaintiff argues she was wrongfully terminated for wearing a hijab (a religious head scarf) in violation of Abercrombie’s All-American “look-policy.” A Rastafarian sued Lawrence Transportation Systems for wrongful failure to hire him because of his long dreadlocked hair. A group of West African men sued Wal-Mart alleging discrimination based on race and African heritage.
Similar cases are being filed across the country in state and federal court in increasing numbers. EEOC claims are at an all-time high, and the EEOC reported that 2009 marked the fifth consecutive year that discrimination complaints filed by Muslim Americans had increased.
Applicants and employees must not be treated unfavorably because they are from a particular country or part of the world, because of ethnicity or race, or because of personal characteristics or skin color associated with their national origin or race. Treating applicants or employees differently because they appear or are perceived to be of a certain national origin or race, even if they are not, is also unlawful. Similarly, treating someone unfavorably because he or she is married to (or associated with) a person of a certain national origin or race, or because of his or her connection with an ethnic organization or group, is prohibited.
Discrimination can still occur when the victim and person who inflicted the discrimination are from the same national origin or race, or between members of different minority groups. Employers must also be mindful to avoid reverse discrimination.
Unlawful harassment based on national origin or race may include racial slurs, offensive or derogatory remarks or the display of offensive symbols, such as a noose or swastika. However, sometimes it is more subtle. Employers must train employees and supervisors not to carelessly joke about another employee’s race or national origin. A comment intended as a joke, about another employee’s accent, way of dressing, or choice in food, for example, can later be used in a lawsuit as direct evidence of discrimination.
An employment policy or practice that applies to everyone can be illegal if it has a negative impact on the employment of people of a particular national origin or race. For example, a “no-beard” employment policy that applies to all workers without regard to race may still be unlawful if it has a negative impact on the employment of African-American men (who have a predisposition to a skin condition that causes severe shaving bumps). A dress code that prohibits certain kinds of ethnic dress, such as traditional African or Indian attire, but otherwise permits casual dress, treats some employees less favorably because of their national origin.
An employer may not base an employment decision on an employee’s foreign accent, unless the accent seriously interferes with the employee’s job performance. An employer can only require an employee to speak fluent English if necessary to perform the job effectively. An “English-only rule”, which requires employees to speak only English on the job, is prohibited unless required to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.
Finally, customer preferences, real or perceived, do not establish undue hardship or warrant discriminatory treatment. For example, an employer should not prohibit an employee from wearing a particular ethnic hairstyle or dress because it makes a client uncomfortable. Background investigations or other screening procedures may not be implemented in a discriminatory manner, even if demanded by a client. Employers must take remedial action to address discriminatory or harassing treatment based on race or national origin by customers against employees.
By educating supervisors and employees about these issues, employers will avoid liability and create inclusive and balanced workplaces.