AFTER THE TRAGEDY: ANTI-MUSLIM HARASSMENT PRESENTS NEW CHALLENGES FOR EMPLOYERS

Avoiding Lawsuits

As they used to say on the car commercials, this changes everything.

One offshoot of the September 11 tragedy has been the alarming increase in anti-Arab and anti-Muslim harassment throughout the country. Workplaces are societal microcosms, and employers are already experiencing worker-to-worker, and even supervisor-to-worker harassment of this nature in factories and offices. If military casualties ensue, and/or if additional terrorist incidents are threatened or reported, expect things to get much, much worse before they get better.

In addition to everything else we now need to worry about, this raises substantial and dangerous legal issues for businesses. Consider the following scenarios:

An employee of Arab descent is assigned to a work group. Several members of the work group regularly make disparaging remarks about the employee, and Arabs in general. They refuse to include the employee in meetings. The employee gets anonymous, threatening notes. Disparaging e-mails respecting Arabs continually circulate through the office. The employee is consistently left out of work-related social functions. Eventually, the employee quits.
One of your employees, a Sikh, came to the United States from India. He has always worn a turban, consistent with the Sikh faith, which is not connected to the Muslim faith. Nevertheless, popular opinion confuses Muslims and Sikhs and, because your employee has contact with customers who are expressing anti-Muslim sentiments, you re-assign your employee to job duties that avoid customer contact, over his protest.
Three employees are eligible for promotion to a manager position. One of the employees is of Arab descent. You promote the Caucasian. In truth, the Caucasian was the most qualified. The employee of Arab descent raises the fact that since September 11, you have participated in e-mails and office conversation that clearly indicated an anti-Arab bias. He wants to know the objective criteria - work performance evaluations and the like - upon which you based your decision, because he believes he was discriminated against solely because of his heritage.

These scenarios, which are all too real, raise the potential for substantial liabilities. Each case has lawsuit written all over it.

If this sort of harassment and discrimination has not happened in your workplace yet, it probably will. What happens outside of work usually filters into work. Just by way of example, CBS, CNN, and the Anti-Defamation League reported recent incidents like the following, and more occur each day:

Outside of Dallas, a Mosque was attacked three times in two days, including a fire bombing.
In Chicago, a gas station attendant perceived as an Arab-American was assaulted, a fire bomb was thrown at an Arab educational school, and anti-Arab demonstrations in several surrounding communities led to 15 arrests.
In Philadelphia, explosive devices were detonated in two stores owned by Arab-Americans, a man believed to be an Arab was attacked for that reason on a bus, and three Indian- born Sikhs were threatened at a gas station.
In Houston, a Pakistani-owned tire store was set on fire after three men flew into a violent rage after being advised that the owner was Muslim.
In San Francisco, Afghan and Irani restaurants were defaced, and Mosques and individuals received consistent threats over the telephone and through e-mail.
In Washington, a brick was thrown through the window of an Islamic book store, with an attached note saying "Death to Arab Murderers."
A Sikh surgical resident (an American citizen) who helped set up the first triage center at Ground Zero has been consistently harassed based on his appearance and turban, to the point that he cannot walk on the streets or run errands in midtown Manhattan.

So, what do you do? There is no fail-safe prescription for success, but at least the following is clear:

First, train your managers. Your managers must understand both the human and legal impact of harassment and discrimination. Particularly in the current context, they need to be educated not only on the legalities, but the realities of the human toll taken by discrimination and harassment based on nationality. Fortunately, our training firm has been besieged by requests for training, and we view this as a positive sign that the business community recognizes the danger and understands the solution.

Second, investigate and react to complaints in the right way. As we have pointed out many times before in Avoiding Lawsuits, courts will look very carefully about your response once a complaint is lodged. You have to know how to respond, and the "don'ts" are as important as the "do's." Hopefully, your procedures manual covers the complaint response and investigation procedure.

Third, business leaders must be pro-active, and set an example. In times like these, business leaders have to lead in a pro-active way. Don't wait for complaints. If you see the seeds of harassment, stop it in its tracks. The word will spread. Moreover, never forget the fact that employees will look to management and ownership for cues on what constitutes permissible conduct. Don't let the defamatory e-mail go through your computer without communicating with those who sent it to you; don't participate in the water cooler conversations that smear all members of a nationality on account of what some did; go out of your way to include those who might be subject to discrimination within workplace activities. Actions speak louder than words - select your actions deliberately and make sure as many people in your work place as feasible know what you are, and are not doing.

Fourth, make certain that your policies and procedures are updated and enforced. If ever there were a time to institute and review the appropriate policies and procedures for discrimination, harassment, complaint investigation, performance evaluation, and all of the rest of it, this is it.

Fifth, put yourself in a position to prove that your hiring, firing, promotion and work assignment decisions were based on merit, not on nationality. File documentation is the key. For example, see the Avoiding Lawsuits articles from August 1, 2000, September 1, 2000, and October 15, 2000 on the "My Word Against Your Word" issues that all employers face, especially now.

It has become almost a cliche to observe that one of the goals of terrorism is to effectuate a change in our way of life, and to the extent that the terrorists succeed in compromising some of our most basic American values relating to human rights and freedoms, they will clearly have succeeded. Many will argue that employers have a special, moral responsibility to protect those values, particularly in times like these. That debate is outside the ambit of what we try to do in Avoiding Lawsuits. However, this much is clear: harassment based on nationality and ethnic origin has increased, and that harassment is finding its way into the workplace. This will eventually produce a legal backlash, the battleground for which will be the EEOC and the courts. As well he should, President Bush has made it plain that the country will not tolerate this kind of harassment and discrimination, and we can expect that EEOC hearing officers and judges will be looking for examples through which to send a clear message.

Moral and political issues aside, and focusing only legal and economic concerns, you do not wish to be one of those companies that the EEOC and the courts will use as the poster child for the government's stance against this kind of harassment.

If you need assistance in structuring or implementing your efforts to ameliorate these kinds of risks, please contact us.

Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.

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