Backlash: Potential for Discrimination
As a result of the recent terrorist attacks, some Muslims and Arab-Americans have reportedly been the object of expressions of hatred, blame, and criticism. Nationals of Mid-East countries, as well as those of Arab heritage who were born in this country, have reportedly been subjected to slurs, insults and threats, and even physical attack in some cases. Indeed, President Bush has made a point of speaking out on this subject and denouncing these sorts of attacks. In light of the prevalence of such occurrences, employers must recognize that the possibility of not only discrimination but also actual physical violence in workplaces is real. For a number of reasons, including potential liability for such misconduct, employers must be ready to address these issues. With emotions high, companies may be placed in a difficult situation where they will be asked to protect unpopular people. Enforcing discrimination rules which may appear to encroach on expressions of patriotism may seem incongruous or even trivial. But if the last fifteen years have taught us anything, it is that the courts and political leaders will shift the burden of societal problems upon employers, especially once the immediate crisis passes and tensions recede.
The employment discrimination issues raised by the current backlash are not so different from those concerning other groups who have faced discrimination in the past. As you may know, Title VII of the Civil Rights Act of 1964, as amended ("Title VII") is the primary federal statute prohibiting discrimination in the workplace. The statute requires that an employer will not discriminate on the basis of a number of factors, including religion and national origin (which includes birthplace, ancestry, and culture). The New Jersey Law Against Discrimination, the primary state statute prohibiting discrimination, has similar prohibitions. As a result, these laws protect Muslims, Arabs and Arab-Americans in the American workplace. Discrimination comes in many shapes and forms. It need not be verbal: gestures, cartoons and pictures can be discriminatory. It need not be directed at any particular individual. It can include communications in various forms including graffiti, faxes, e-mails or spoken words.
Generally speaking, employers are potentially liable for many of the actions which occur in the workplace, regardless of whether such actions were intended or sanctioned by the company. Many lawsuits have begun over words and actions which occur in an informal setting at work: a conversation around the water cooler or e-mails exchanged through the company network. When a shocking, troubling event occurs, it is human nature to want to talk about it, and this will inevitably happen among coworkers.
It is also well established that the words and actions of supervisors, even if not done at the direction of the employer, may be attributed to the employer, creating liability for the company. Proper training can both prevent improper actions by supervisors (and other employees) and possibly reduce or avoid company liability. Therefore, it is critical that employers sensitize their supervisors to the potential problems posed by the terrorist attacks. Moreover, any misconduct of co-workers that is tolerated by the employer may also result in liability to the employer. Employees should also be sensitized and informed that slurs, jokes and insults based on ethnicity or religion will be met with a zero-tolerance policy.
There is a developing body of case law which recognizes that employers must provide a safe place to work. Although the liability of employers for workplace violence to their employees has generally been limited to workers' compensation benefits, some have suggested that OSHA regulations or an exception to the general rule of employer immunity for workplace injuries should provide a basis for greater liability for injuries resulting from employee violence. In any event, an employer is subject to a duty of care to prevent its employees from violence against non-employees, such as customers and other members of the public.
If for no other reason than to avoid liability (but there are other good reasons), employers are well advised to be proactive in combating potential discrimination and violence. We would recommend the following at a minimum:
- Enforce anti-discrimination policies against persons who harass or discriminate against Muslims, Arab-Americans or members of other protected categories;
- Provide training to employees and supervisors on this subject now;
- Establish policies and procedures for identifying and responding to threats of violence;
- Create a crisis action plan and a crisis management team for efficient response to incidents or threats;
- Take seriously any threats of violence by or against employees.