Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on religion, national origin, race, color, or sex. At this time, employers and unions should be particularly sensitive to potential discrimination or harassment against individuals who are - or are perceived to be - Muslim, Arab, Afghani, Middle Eastern or South Asian (Pakistani, Indian, etc.).
The law's prohibitions include harassment or any other employment action based on any of the following:
- Affiliation: Harassing or otherwise discriminating because an individual is affiliated with a particular religious or ethnic group. For example, harassing an individual because she is Arab or practices Islam, or paying an employee less because she is Middle Eastern.
- Physical or cultural traits and clothing: Harassing or otherwise discriminating because of physical, cultural, or linguistic characteristics, such as accent or dress associated with a particular religion, ethnicity, or country of origin. For example, harassing a woman wearing a hijab (a body covering and/or head-scarf worn by some Muslims), or not hiring a man with a dark complexion and an accent believed to be Arab.
- Perception: Harassing or otherwise discriminating because of the perception or belief that a person is a member of a particular racial, national origin, or religious group whether or not that perception is correct. For example, failing to hire a Hispanic person because the hiring official believed that he was from Pakistan, or harassing a Sikh man wearing a turban because the harasser thought he was Muslim.
- Association: Harassing or otherwise discriminating because of an individual's association with a person or organization of a particular religion or ethnicity. For example, harassing an employee whose husband is from Afghanistan, or refusing to promote an employee because he attends a Mosque.
Employers must provide a workplace that is free of harassment based on national origin, ethnicity, or religion. They may be liable not only for harassment by supervisors, but also by coworkers or by non-employees under their control. Employers should clearly communicate to all employees - through a written policy or other appropriate mechanism - that harassment such as ethnic slurs or other verbal or physical conduct directed toward any racial, ethnic, or religious group is prohibited and that employees must respect the rights of their coworkers. An employer also should have effective and clearly communicated policies and procedures for addressing complaints of harassment and should train managers on how to identify and respond effectively to harassment even in the absence of a complaint.
Title VII requires an employer to reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship for the employer. Some reasonable religious accommodations that employers may be required to provide workers include leave for religious observances, time and/or place to pray, and ability to wear religious garb.
Speak English-Only Rule
A rule requiring employees to speak only English at all times on the job may violate Title VII, unless an employer shows it is necessary for conducting business. If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule. Any negative employment decision based on breaking the English-only rule will be considered evidence of discrimination if the employer did not tell employees of the rule.
An employer must show a legitimate nondiscriminatory reason for the denial of employment opportunity because of an individual's accent or manner of speaking. Investigations will focus on the qualifications of the person and whether his or her accent or manner of speaking had a detrimental effect on job performance. Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance.
Harassment on the basis of national origin is a violation of Title VII. An ethnic slur or other verbal or physical conduct because of an individual's nationality constitute harassment if they create an intimidating, hostile or offensive working environment, unreasonably interfere with work performance or negatively affect an individual's employment opportunities. Employers have a responsibility to maintain a workplace free of national origin harassment. Employers may be responsible for any on-the-job harassment by their agents and supervisory employees, regardless of whether the acts were authorized or specifically forbidden by the employer. Under certain circumstances, an employer may be responsible for the acts of non-employees who harass their employees at work.
Immigration-Related Practices Which May Be Discriminatory
The Immigration Reform and Control Act of 1986 (IRCA) requires employers to prove all employees hired after November 6, 1986, are legally authorized to work in the United States. IRCA also prohibits discrimination based on national origin or citizenship. An employer who singles out individuals of a particular national origin or individuals who appear to be foreign to provide employment verification may have violated both IRCA and Title VII. Employers who impose citizenship requirements or give preference to U.S. citizens in hiring or employment opportunities may have violated IRCA, unless these are legal or contractual requirements for particular jobs. Employers also may have violated Title VII if a requirement or preference has the purpose or effect of discriminating against individuals of a particular national origin.