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Is an Employer Obligated to Stop Religious Harassment by Fellow Employees?
An employee can bring a “hostile work environment” claim against an employer, based on religious harassment perpetrated by fellow employees. It is an employer’s obligation to prevent this kind of conduct, most notably through employee training, and to react as the law dictates when placed on notice of a potential problem.
To make out such a claim, a harassed employee must show that the harassment was based on his or her religion, that the harassment was pervasive and severe, and that the harassment created an intolerable work environment that detrimentally affected the employee. As such, the elements of a religion-based hostile work environment action are analogous to a sexual harassment-based hostile work environment action.
Hostile work environment claims based on religion are a burgeoning problem, and they pose a very dangerous, very difficult challenge for employers. It’s not difficult to understand the fears and emotions that have caused this upsurge in claims. We have been there before.
In February 1942, about two months after Pearl Harbor, President Roosevelt signed an executive order effectively authorizing the segregation of American citizens of Japanese descent. Shortly thereafter, military officials forced more than 100,000 Japanese Americans into barbed wire “relocation camps” consisting of tarpaper-covered barracks without plumbing or cooking facilities. The commanding officer’s final report to the US Army Chief of Staff explained some of the reasons for the internment, as follows:
The continued presence of a large, unassimilated, tightly knit and racial group, bound to an enemy nation by strong ties of race, culture, custom and religion along a frontier vulnerable to attack constituted a menace which had to be dealt with.
Many years, and another generation thereafter, we look back in horror at the internment of citizens based solely on their “strong ties of race, culture, custom and religion” to a wartime enemy. A plaque at one of the relocation centers now reads in part:
May it serve as a constant reminder of our past so that Americans in the future will never again be denied their constitutional rights and may the remembrance of that experience serve to advance the evolution of the human spirit.
In 2004, many Americans label the wartime enemy as “Muslim” – a group they perceive as another “tightly knit and racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.” Arguably, the same kind (if not the same degree) of emotions and fears that that led to the internment of Japanese Americans are being directed against Muslims in our country. The Washington Post, for example, reported this month that between 2002 and 2003, Muslims in the United States experienced a 70 percent jump in harassment, violence and discriminatory treatment. A major Islamic advocacy group blames the upsurge in “Muslim bashing” on talk radio, and similar media wartime influences. The EEOC reports that claims against employers alleging job discrimination and harassment based on an employee’s Muslim faith have doubled, and there is every reason to believe we are at the bottom of a rising curve.
The problem is, of course, not limited to the post 9-11 issues currently in the headlines. America has experienced religious strife throughout its history, and the various religious conflicts that persist throughout the world are also manifesting themselves among the immigrant populations now in this county.
The issue for employers is this: the cauldrons in which these prejudices and fears boil and overflow is the workplace, where people of different backgrounds, who might not otherwise choose to interact, are forced to do so.
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.
