Publications
Do I Have to Hire Muslims? What if My Employees Object?
Anti-Muslim sentiment is another reality that has to be dealt with in today's work place (see the October 1, 2001 issue of Avoiding Lawsuits). But the blanket refusal to hire Muslims merely because of their religious affiliation will bear substantial legal consequences.
Many employers have complained to us of the mixed signals and conflicting demands they are attempting to decode. They know that we live in a country with laws that purport to protect people from being discriminated against solely on the basis of religious affiliation or nationality. But they also know that, historically, the law has bent to the fears and biases of the time - one need go no further than the Supreme Court's validation of the forced incarceration of Japanese-Americans during World War II. Many find current echoes of such travesties in the FBI's present investigatory methods, the call for military trials of lawful immigrants, and the tacit (if not open) endorsement of racial profiling at airports. And they are mindful of the federal government's encouragement that employers be alert and watchful for suspicious conduct in the work place, which many interpret as a mandate to treat differently those who look like, or have names similar to the terrorists.
Notwithstanding the confusion that some may experience in these confusing times, our belief is that the EEOC and the courts will aggressively enforce the discrimination laws in the effort to quickly establish that those of Muslim religious affiliation, as well as Arab-Americans generally, have not been excluded from the very broad protections our law applies to discriminatory conduct. This means that employers who treat Muslim applicants or employees differently, even if just to accommodate the demands of current employees, do so at their own, severe risk. Just days after September 11, the newly appointed head of the EEOC encouraged private businesses to reiterate anti-discrimination policies and complaint procedures as applied to such matters, signaling that the EEOC has no intention of sitting by and allowing itself to be swept up in wartime fervor. We also expect individual Muslims and Arab-Americans who feel that they have been discriminated against to seek redress promptly and aggressively from employers who may be discriminating against them on religious or nationality bases.
In short, we believe this is a legal powder keg, and that many employers will face years of litigation for having misinterpreted what they thought their patriotic duty might have been or for allowing employee anti-Muslim sentiment to dictate hiring and promotion policies.
Some employers have attempted to strike what they perceive to be a middle road by conducting detailed screenings, background checks and interrogations in respect to Muslim applicants (or, even worse, employees that employers think may be Muslim but, in fact, are not). That, however, is unlawful and discriminatory conduct, unless the same level of screening, background checks and interrogation is applied to all applicants. In addition, there are major legal issues that surround performing background checks. A federal statute - the Fair Credit Reporting Act - applies to background checks in ways that are beyond what most employers would reasonably foresee. This is another one of those areas in which common sense does not apply. Do not commence a program of background checks and employee screening without detailed legal counsel.
We know that our advice is easier stated than implemented: do not discriminate, or you will likely incur substantial liabilities. Contact us if you need assistance in methods you can employ to comply with the law while at the same time functioning in an all-too-real world.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
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.
