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September 11 Doesn't Justify Discrimination Against Muslims, Arabs, Others
by Gerard Panaro, BOL Guru

Having just observed the second anniversary of September 11, 2001, it is perhaps an opportune time to note that discrimination on the basis of race, national origin and/or religion violates Title VII. According to the EEOC, since September 11, 2001, it has received more than 800 charge filings nationwide, alleging backlash discrimination by individuals who are or who are perceived to be Muslim, Arabic, Middle Eastern, South Asian or Sikh. The two most common issues alleged are harassment and discharge. Nearly 100 individuals aggrieved by 9/11-related employment discrimination have received over $1,450,000 in monetary benefits. This article notes EEOC actions over the past year.

Harassment, Retaliation. The EEOC sued two hotels in New York City for discrimination against a class of Muslim, Arab, and South Asian employees based on their religion and/or national origin. The suit alleged that employees were subjected to a hostile work environment and to severe and pervasive harassment (cursed at and accused of destroying the World Trade Center and the country) that involved high level managers and coworkers. Additionally, the EEOC alleges that the employers knew or should have known of the harassment and failed to take adequate measures to stop and/or prevent the harassment.

In a second suit, the EEOC sued a hospital in Chicago for subjecting an employee to harassment, discriminatory discipline, retaliation, and termination because of her religion, Islam. The complaint said that one of the hospital's managers created a religiously hostile work environment by treating the employee worse than other workers because of her religion and finally fired her, and that the hospital endorsed the mistreatment. The manager made offensive comments about her religion and religious beliefs. The EEOC also alleged that the hospital retaliated against the employee for complaining about the religious harassment and discriminatory treatment by intensifying the derogatory comments and unjustified disciplinary measures.

In March, the EEOC settled a harassment lawsuit on behalf of four employees (Pakistani-American Muslims) for $1.1 million. As part of the consent decree, the company also agreed to make policy changes, conduct training to prevent future discrimination, and to implement a policy guaranteeing an employee's right to request an accommodation for religious needs. The workers alleged harassment that included being ridiculed during their daily Muslim prayer obligations and derogatory name-calling such as "camel jockey" and "raghead."

Religious accommodation. Last November, the EEOC settled a charge with a medical practice involving a nurse who had a romantic relationship with a Muslim man, whom her co-workers believed to be of Middle Eastern or Arab descent, converted to Islam and wore a headscarf. The practice paid the employee $35,000, agreed to conduct training on the federal EEO laws, post an employee notice regarding the requirements of the anti-discrimination laws, and offer the nurse reinstatement to her position.

Termination. In one of the first cases filed after September 11, 2001, the EEOC sued an art museum in Massachusetts in September, 2002, for firing an Afghan-American Muslim man on the basis of his national origin and religion. After the terrorist attacks, the employee, a security guard and the only employee of either Muslim or Afghan origin, was ostracized by his co-workers, and one of his co-workers falsely reported him to the authorities as a suspected terrorist. On January 4, 2002, the museum terminated his employment without notice, allegedly for taking excessive time to complete security rounds on three separate occasions, and he was replaced by a non-Muslim, who was not of Afghan or Middle Eastern origin.

The EEOC's suit alleged that reasons given for the guard's termination were false and were used as an excuse for discrimination. The museum failed to investigate or take any action against at least four other security guards who had taken as long or longer to complete their rounds. In addition, the museum failed to follow its usual and customary practice of issuing oral and written warnings, or a suspension, and it failed to follow its usual practice of issuing a memo to all employees reminding employees of the museum's expectations of them. Prior to the events used as an excuse for his termination, the employee had never had a disciplinary warning, and he had just received a merit raise.

More recently (September, 2003), the EEOC sued two companies in New York, alleging discrimination against an employee of Middle Eastern-Lebanese national origin. The suit says he was fired because of his national origin in the aftermath of 9/11, shortly after he disclosed that his grandfather was Lebanese and Muslim. The companies then (according to the suit) falsely accused him of making inappropriate comments and of "unprofessional conduct," failed to conduct an effective investigation into the untrue allegations about him, and suspended and thereafter terminated his employment due to his national origin. The suit seeks an injunction prohibiting the companies from discriminating on the basis of national origin and an order requiring the companies to implement policies and procedures against discrimination. It also asks for back wages plus interest, and other monetary restitution, including front pay, for the employee.

Religious accommodation. Employers must accommodate the religious practices of their employees, unless they can demonstrate that doing so would create an undue hardship. Under this heading, the EEOC settled a complaint against a major corporation in Minnesota in September, 2003, on behalf of 165 Somali workers who were disciplined for using an unscheduled break traditionally offered to line employees on an as needed basis, to observe their sunset prayer. The agreement between the EEOC and the company affords Muslim employees with an opportunity to observe their sunset prayer. It also provides for a Somali translator at specified occasions and for policies and procedures to be available in Somali. Diversity training will be held for corporate managers, line leaders and supervisors. The company will also make a monetary donation to the Islamic Center in St. Cloud, Minnesota, to provide needed services to Somali families in the St. Cloud area.

"Employment at Will" Is Not a License to DiscriminateThe classic formulation of the "employment at will doctrine" is this: In the absence of an agreement to the contrary, an employer may dismiss an employee, and an employee may leave his or her employment, at any time, for any reason or no reason, with or without cause, and with or without notice. Apparently, a fair number of employers seem to think that if they have an employment at will policy, or do business in an employment at will jurisdiction, their decision to dismiss an employee cannot be challenged on anti-discrimination grounds. In other words, they apparently believe that because they may dismiss an employee for "any reason," they can't be sued if the reason happens to be a discriminatory one, such as gender, race, pregnancy or disability.

In particular, the issue seems to arise in the case of non-renewal of employment contracts. For example, a school may have yearly employment contracts with its teachers, with no promise of contract renewal. A particular teacher reaches a certain age, or has missed class due to illness. The school decides not to renew her contract because it thinks she is getting too old, or because it is afraid she will miss too many days due to illness. The administration may think that it can do this because it has no obligation to renew the contract, but this belief is absolutely false. An employer may never dismiss or refuse to renew the contract of an employee for an illegal reason, whether or not there is any policy of "employment at will", and whether or not it operates in an "at will state." The statement of the employment at will doctrine should really be amended to read: an employer may dismiss an employee for any reason or no reason, other than an unlawful reason, at any time, etc.

A recent case from Virginia illustrates the point: Kozlowski v. Hampton School Bd.., 2003 WL 22273073(4th Cir. (Va.), 2003). The plaintiff for a long time had been the head football coach at Bethel High School in Hampton, Virginia. He was employed under one-year contracts. He sued under the Age Discrimination in Employment Act when his contract was not renewed. Although the jury decided in favor of the school board, the court of appeals ordered a new trial because the trial judge gave erroneous, prejudicial jury instructions.

The coach claimed that the high school principal failed to renew his coaching contract because of his age. At the time of the non-renewal, the principal and the coach were both fifty-four years old. The coach's replacement was under forty. Both the plaintiff and the school principal agreed that there were a number of (legitimate, non-discriminatory) reasons why the coach's contract was not renewed, including his use of an ineligible player, his failure to attend a coaches' All-District meeting, and the principal's dissatisfaction with the overall direction of the football program. However, the coach added that the principal also told him that "I want a younger coach.... I need new blood in it. I want people who can communicate with the kids better."

The law is, the court said, that if the coach could prove that the school failed to renew his contract because of his age, then he would establish a violation of the ADEA and be eligible for all the remedies afforded by that statute. In other words, even if a contract does not provide for automatic renewal (or no renewal at all), and even if it is perfectly legal simply not to renew a contract and let it expire when it is over, if the employee can prove that reason his contract was not renewed was illegal discrimination, then he will have a claim for discrimination and be entitled to all the rights, remedies and protections of the anti-discrimination laws.

Moreover, in the case of age discrimination specifically, the plaintiff does not even have to prove that age was the sole reason for his dismissal (or the non-renewal of his/her contract). If an employer gives legitimate, legal, nondiscriminatory reasons for terminating an employee, but the jury does not believe those reasons, then it may infer (but is not required to infer) that age was the "real" reason for the action and find in favor of the employee/plaintiff. In the Kozlowski case, the trial judge instructed the jury that the ADEA makes it unlawful to refuse to hire or to discharge (or not to renew an employment contract) of any individual solely because of his/her age. "The court's addition of the term 'solely' was erroneous," the court of appeals said. "It is clear ... that the law requires only that age be a causative or determinative factor in the decision, not the sole reason." Therefore, even if an employer has legitimate reasons for not renewing an employee's contract, if the employee can convince the jury that age "a factor" ("causative or determinative") in the decision, s/he can still win.

Can You Ask Employees If/When They Plan to Retire? It is perfectly legal to ask an employee what his/her retirement plans are. In fact, the Age Discrimination in Employment Act expressly permits employers to offer "early retirement incentives." Courts recognize a business's right and even duty to plan for the future, anticipate needs and openings, and gather information that will help it make the right decisions. The key to such inquiries is this: they must be totally voluntary, noncoercive, free of any pressure, threats or inferences that the employer is seeking to push or force out an employee. If offered an incentive to retire, the employee must be given adequate time to consider it; must be totally free to accept or reject it; and the offer must not place the employee in a worse position if s/he refuses it than if s/he accepts it.

The EEOC regulations implementing the Age Discrimination in Employment Act expressly prohibit involuntary or forced retirement. The ADEA, of course, applies to persons 40 years old or older. There is no upper age limit, so, except in only two cases (tenured professors and top executives or policy makers), you can never force an employee to retire, no matter how old s/he is. However, that same section of the regulations expressly states that the ADEA permits individuals to elect early retirement at a specified age at their own option.

The EEOC's Compliance Manual (October 3, 2000) has a chapter dealing with early retirement incentives. The Manual acknowledges that voluntary early retirement incentive plans (ERIs) have become a valuable tool in permitting employers and employees to work together in connection with downsizings. The Manual explains that in an ERI, older employees typically are offered a financial incentive in exchange for their agreement to leave the workforce earlier than they had planned. Even the EEOC recognizes the benefits to both employer and employee in a voluntary early retirement incentive offer. The Compliance Manual notes that, "Since the older workers who accept the incentive usually are the higher-paid individuals in the workforce, employers often can save far more with an ERI than with an involuntary reduction-in-force. The older employees also benefit inasmuch as they are able to retire with larger benefits earlier than otherwise would have been possible."

As the above demonstrates, if the ADEA allows an employer to offer early retirement incentives, it certainly allows an employer simply to ask or inquire what an employee's plans for retirement may be, for planning, promotion, strategic and other business purposes.

But, as already emphasized, the key word is voluntary. As long as ERi is voluntary, the EEOC's Compliance Manual says, the employer may:
  • set a minimum age, or a minimum number of years of service, at which employees will be eligible to participate;
  • offer an ERI for a limited period of time (e.g., only to those who retire between January 1 and April 30); and/or
  • offer an ERI only to a subset of a company (e.g., only to managers, only to a particular department, or only to employees at a single facility).
Unfortunately, there is no "bright line" test for determining whether an inquiry about or an offer of retirement is voluntary or not. However, the Manual just referred to, does state the principle or criterion of decision: "The test is whether, under [the facts and circumstances of the particular case] a reasonable person would have concluded that there was no choice but to accept the offer." In other words, if the employee felt s/he were being pressured into early retirement, then it would not be voluntary and it would therefore violate the ADEA. Older workers may not be forced to take early retirement.

The EEOC manual lists the following factors that can be relevant to deciding whether an inquiry or incentive is voluntary or not:
  • Was the employee given adequate time to make a decision?
  • Was the employee given accurate and complete information about the plan?
  • Was the employee subjected to any threats or coercion?
  • Will older employees be subjected to negative consequences if they reject the offer?
  • Did the employee receive advice of counsel while making his/her decision?
The EEOC Compliance Manual says flatly that, "A plan will not be voluntary if an employee was given inadequate time or insufficient information to make an informed decision about whether to accept the employer's offer." On the other hand, however, "it is not coercion for an employer to notify its work force that layoffs will be necessary if insufficient numbers of employees retire voluntarily, unless older workers are the only ones threatened. It is also not coercion that an employer's offer was 'too good to refuse.'"

There is case law that confirms that it is perfectly legal and legitimate simply to ask about an employee's retirement plans and/or discuss them with him or her. In Gonzalez v. El Dia, Inc., 304 F.3d 63 (C.A.1, 2002), for example, the First Circuit said that "the mere tender of a retirement proposal does not" evidence age discrimination. (In this case, the employer had proposed retirement to the plaintiff as a "prudent course," given the serious health and financial problems the plaintiff had been experiencing.) Importantly, and in line with what has been emphasized above, the court noted that the plaintiff herself did not claim that she felt pressured to retire. An early retirement program designed to force employees to leave or face significant pressure to resign or retire could imply age discrimination, the court added.

But an offer of early retirement is equivalent to discharge when the choice is essentially either early retirement or continuing to work under intolerable conditions, like the threat of termination without benefits, said the court in Koren v. SuperValu, Inc., 2003 WL 1572002 (D.Minn., 2003), noting that this is the position of "[m]ost courts". The plaintiff's situation in this case, the court decided, presents a fact pattern of employment termination because, even though the option of retirement was left open for him to consider and accept, it was made clear to the plaintiff that continued employment was decidedly not an option.

State Roundup
Colorado: Professional liability policy does not have to indemnify chiropractor for sexual harassment.
More and more employers seem to be buying insurance against employment law claims, particularly for discrimination. However, as a Tenth Circuit case shows, such policies have to be read carefully to make sure one understands what types of claims may not be covered.

In National Chiropractic Mut. Ins. Co. v. Kancilia, 2003 WL 22273338 (C.A.10 (Colo.), 2003), the Tenth Circuit agreed with the insurance company that it was not obligated under two professional liability insurance policies issued to the defendant to indemnify him against state court judgments obtained by two women (who had been patients and employees of the defendant) who sued him for negligence, outrageous conduct (engaging in sexual relations with them), and invasion of privacy. The attorney for the women generally described the case as one involving sexual harassment.

The policy covered "injury caused by accident," but it excluded coverage for "invasion of privacy, sexual assault or impropriety." Nor would the policy reimburse for punitive damages.

Comparing the wording of the policies with the claims of the two women, the Tenth Circuit concluded that their "negligence of a chiropractor" claims were not "accidents" as defined in the policies. The women's claims "resulted from intentional conduct on Kancilia's [the defendant] part, i.e., his decision to violate his code of ethics and professional norms, and seek a sexual relationship with women who were (at least initially, in the case of Pearson) his patients." His "decision to pursue a sexual relationship with each woman was not 'accidental.'"

Florida: arbitration compelled. The plaintiff, hired as Business Development Manager, signed an employment contract with an arbitration clause which said that either the company could choose the arbitrator, in which case it would pay the fees, or the employee could have a say in selecting the arbitrator, in which case she would have to pay half the fee. The plaintiff was terminated, sued under Florida anti-discrimination law, and the company sued to enforce the arbitration agreement.

The plaintiff challenged the arbitration clause on three grounds, but the court upheld it. First, she said the requirement to pay half the arbitrator's fee if she helped select him or her deprived her of her statutory right to be awarded fees if she prevailed. However, the court noted that the plaintiff would have an opportunity to present issues relating to her expenses, regardless of the outcome of the arbitration. If she won, she would be able to recover her costs and fees, so she will have an adequate remedy.

Second, the plaintiff argued that she would not be able to obtain broad injunctive relief in arbitration, because EMC's arbitration policy provided that the arbitrator may not change the company's practices or procedures. However, the court noted that arbitrators regularly award injunctive relief on behalf of claimants, and that there was nothing about the nature of this dispute that would prevent it here. "While it is true that an arbitrator could not change EMC's practices or procedures, there is nothing in the arbitration policy to suggest an arbitrator lacks authority to enjoin illegal practices or procedures," the court said.

Finally, the plaintiff argued the arbitration clause was unconscionable, because she was not given a copy of the policy in advance. However, the court noted that if the plaintiff had wanted to see the procedures in advance, she could have requested them when she signed the agreement. Also, the plaintiff was a well-educated professional businesswoman. She had a full week to examine the employment agreement or to have it evaluated by a lawyer. EMC even advised her in writing that she should seek the advice of a lawyer before signing the agreement. (Brasington v. EMC Corp., 2003 WL 22326664(Fla.App. 1 Dist.).

Illinois: proficiency in English legitimate job qualification. While employers may not impose "English only" rules in the workplace, or absolutely forbid employees to speak languages other than English, proficiency in English may be a legitimate job requirement and a legal, nondiscriminatory reason not to award a position to an applicant, an Illinois court said in Starzyk v. American President Lines, Ltd.,. 2003 WL 22305109 (N.D.Ill.). The plaintiff, an American citizen who was born and raised in Poland, sued American, alleging that it terminated him because he was Polish and because of his age (60). The court ruled in favor of the company.

The company had three types of work: the dock, the shop, and the yard. The plaintiff worked as a mechanic in the shop. When there were layoffs in that department, he transferred to the dock. When there were layoffs at the dock, the plaintiff was terminated because management discussed the plaintiff's ability to perform yard work, and concluded that he could not because the job required conversing with truck drivers who came to the yard, and also required paperwork and the use of a computer. Management felt that the ability to understand and converse in English was necessary, and the plaintiff had demonstrated that he lacked that ability. (This was confirmed later when the plaintiff filed his EEOC complaint and an EEOC investigator visited the workplace and observed the work in the yard. His investigative report concluded that a functional knowledge of English was required for the job and that the plaintiff did not speak English well.)

On these facts, the court concluded that the plaintiff failed to state a claim. One element of proof is that the plaintiff must show that he was qualified for the job in question. In this case, the plaintiff could not make that showing because the "undisputed facts" showed that he lacked the proficiency in English necessary to perform work in the yard. Thus, he could not establish that he was qualified for a job in the yard.

Illinois: defective investigation used to terminate employee is adverse job action. If an investigation into an employee's alleged misconduct is negligent, but used to justify his termination, then it may constitute an "adverse job action" enabling the employee to state a claim for discriminatory discharge under either Title VII or the ADA, a federal district court in Illinois has held in Spikes v. UPS, 2003 WL 22251394 (N.D.Ill., 2003).

The plaintiff sued for employment discrimination on the basis of disability (mental retardation) and race (black) and for intentional infliction of emotional distress, alleging that UPS violated the ADA and Title VII by questioning him about an allegedly stolen watch, and subsequently forcing him to sign a resignation letter. Although the court dismissed the ADA and emotional distress claims because they were filed too late, it did sustain the race discrimination claim on the basis of the faulty investigation.

In seeking to have the plaintiff's complaint dismissed via summary judgment, UPS argued that its investigation was not a "tangible employment action" under either the ADA or Title VII, which prohibits such actions based on discrimination. However, the court rejected this argument, because UPS did more than conduct an investigation: it used a coercive investigation to justify dismissing the employee. The plaintiff alleged that UPS accused him of stealing a watch, and then intimidated him into confessing to the theft, despite his initial insistence that he had bought the watch with his own money. If the plaintiff can prove these facts at trial, the court said, "it appears that defendants coerced plaintiff into confessing to a crime which he did not commit in order to create a reason for discharging him." Although the plaintiff submitted a resignation, he said it was involuntary and amounted to a termination. Based on these allegations, the court said, it would appear that "without the investigation and resulting confession, there could have been no termination, and thus, I find that the investigation as plaintiff describes it, is a tangible employment action."

Ask the Expert Q. I am an exempt, professional employee, who is pregnant. For medical reasons, my doctor has advised me to leave work at 3 o'clock instead of 5 o'clock until the baby is born. I am willing to come in earlier in the day so that I still work a full day, but because many of our customers are in earlier time zones, but my boss is concerned that I might miss important calls later in the afternoon, and is therefore reluctant to grant me my accommodation. She's not too worried about being in the office earlier. What are my rights in a situation like this, if I have any?

A. One basic right under Title VII (which forbids discrimination on the basis of pregnancy), of course, is to be treated the same as any other employee under the company's existing policies. Thus, for example, if the company routinely allows an employee to leave at 3 o'clock to pick up her child from school, or to coach the school's soccer team, and you are similarly situated to those other employees, then I would think that you would have the right to demand to be allowed to leave at 3 o'clock due to your pregnancy.

Assuming that your company has at least 50 employees, and that you have worked there for at least 12 months, and have worked at least 1,250 hours in those previous twelve months, you would also be entitled to an accommodation under the Family and Medical Leave Act, which permits leave on an intermittent or reduced schedule for an employee's own serious health conditions, including complications due to pregnancy. However, the employer might be able to reassign you to an alternative position in lieu of granting the type of leave you request.

Section 203 (29 CFR Part 825) says that FMLA leave may be taken "intermittently or on a reduced leave schedule" under certain circumstances, one of which is pregnancy: "A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness." (Emphasis added. This would seem to cover your situation). Intermittent leave is FMLA leave, taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.

One "wrinkle", however, that you should be aware of is this, if it applies to your situation: your employer may be allowed to reassign you to a temporary position in lieu of granting you leave on a reduced basis. Section 204 of the FMLA regulations says that if an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable, based on planned medical treatment for the employee or a family member, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position. Transfer to an alternative position may include altering an existing job to better accommodate the employee's need for intermittent or reduced leave.

To be sure, this right is not absolute: transfer requires compliance with federal and state law (e.g., the ADA); the alternative position must have equivalent pay and benefits, but it doesn't have to have equivalent duties. The employer may increase the pay and benefits of an existing alternative position, so as to make them equivalent to the pay and benefits of the employee's regular job. The employer may also transfer the employee to a part-time job with the same hourly rate of pay and benefits, provided the employee is not required to take more leave than is medically necessary.

Most importantly, perhaps, "An employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee. For example, a white collar employee may not be assigned to perform laborer's work; an employee working the day shift may not be reassigned to the graveyard shift; an employee working in the headquarters facility may not be reassigned to a branch a significant distance away from the employee's normal job location. Any such attempt on the part of the employer to make such a transfer will be held to be contrary to the prohibited acts of the FMLA."

About the Author:
Gerard P. Panaro has more than 25 years' experience in employment law and is available to assist readers on an individual basis. You may reach him at 202-861-1314. Mr. Panaro is of counsel with Howe & Hutton, in the Washington, DC office.

First published on bankersonline.com on 2/23/04







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