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Abercrombie & Fitch and Religious Discrimination Cases in NY

Discrimination against Muslims, Hindus and Others in the Workplace

Hajib.Workplace.Discrimination.Dollar.Photo.1.5.16.jpgIn today’s politically charged climate, and with the backdrop of recent tragedies, both domestically and internationally, businesses are urged to be mindful of workplace discrimination against individuals who are, or are perceived to be, Muslim or Middle Eastern.

As discussed previously, federal, state and local laws prohibit workplace discrimination based on religion, ethnicity, country of origin, race, or color (among others). Discrimination is prohibited in all facets of employment, including hiring and firing, job assignments, promotions and pay. Harassment by co-workers, supervisors, and customers may violate the law, as well, and there are strong incentives for employers to prevent or correct the behavior. Additionally, employers must reasonably accommodate religious practices or dress, if it is not an undue hardship. Finally, retaliation against someone who complains about discriminatory practices, files a charge, or assists in an investigation of discrimination violates the law.

Our Award Winning New York Employment Discrimination Attorney discusses some workplace scenarios in general below.

Hiring and Placement

• Q: A Muslim woman who wears a head covering (hijab) applies for a position that would have her interacting with customers and/or the public. If the employer believes that the religious attire may make their customers uncomfortable or even offend them, shouldn’t they take that into account when deciding whether or not to hire her?

Employers should not and cannot take customers’ preferences about religious attire when
making hiring decisions; the net effect is to refuse to hire the woman because of her religion, which is unlawful discrimination.

As the company, Abercrombie & Fitch, recently discovered, refusing to allow an employee to wear a hijab has been determined to be discriminatory (discussed more fully in “Religious Accommodations” below.)

• Q: Is it an acceptable compromise if the employer hires her, but then puts her in a position where she wouldn’t be interacting with the public?

That would be discriminatory, as well. The employer may not treat the applicant differently because of her religion, even if the purpose is to assuage the concerns of others (like customers.)

The decision whether to hire an applicant should not be based on their religious garb, religion, or any other protected characteristic.


• Q: A manager overhears an employee “joking” with an Arab American coworker, Hamir. The employee is heard referring to Hamir as “Osama”, “Jihad” and “ISIS”, and speaking with an exaggerated middle-eastern accent when speaking to and around Hamir. Should the manager take any action, even if Hamir hasn’t complained?

Regardless of how a supervisor learns about improper workplace behavior, it is incumbent upon them to take prompt corrective action (especially when that conduct is based upon a protected characteristic such as religion or national origin.) Employers should have clear processes in place when investigating and addressing offensive conduct and, if it should be determined that the employee was engaging in discriminatory harassment, proper disciplinary action should be taken to ensure that the behavior will not be repeated.

As the EEOC has stated “workplace harassment and its costs are often preventable. Clear and effective policies prohibiting ethnic and religious slurs, or other related offensive conduct, are important to prevent harassment.”

Religious Accommodations

Q: Several Muslim employees have approached the office manager and requested permission to be allowed to use the office conference room for prayer. Does the accommodation have to be granted?

When determining an appropriate response to a request for a religious accommodation, the employer should work with the employees in order to meet their religious needs without causing an undue hardship for the company.

In determining undue hardship, the employer should only consider the request of the employees that has been made (as opposed to considering the potential of other employees making similar requests; should similar requests be made at a later date from a number of other employees, appropriate adjustments may be made at a later time.)

As mentioned above, the U.S. Supreme Court recently determined, in an 8-1 decision, that Abercrombie & Fitch’s failure to grant an employee an exemption from their “look policy” (which, among other things, prohibited employees from wearing head coverings) constituted a failure to provide a religious accommodation. in employment is unlawful and can cause significant legal costs and penalties, for the employer, but it is preventable. Our office can help you create policies and actions plans for diverse workforces to appropriately address potential claims. Contact our office to learn your rights and options. If you are an employee, call us to learn your rights in the workplace. Each case is different and requires specific analysis. This blog post discusses topic in general. You should seek legal advice on your specific situation.

Disclaimer: Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced attorney in your state or jurisdiction. From time to time, a blog post may discuss a legal case – please note that the post may not contain the most to update information on the case as developments may have occurred after it was created.

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