Unfortunately, since 9/11, there has been an increase in Islamophobia. This has also led to many Arabs (as well as Sikhs, South East Asians, and other Middle Eastern nationalities) becoming victims of illegal discrimination.
Between 9/1/2011 and 3/1/2012, the Equal Employment Opportunity Commission (EEOC) filed 1,040 claims for workers who were, sometimes inaccurately, perceived as Muslim or Arab. If you are a victim of national origin or religious discrimination, you may be entitled to compensation and damages.
What Kinds of Discrimination Could Arab Employees Face?
Federal, state, and municipal discrimination laws protect Arab employees. National origin and religious discrimination are illegal at every stage of the employment process—from hiring to termination.
Most anti-discrimination laws prohibit adverse employment actions and harassment based on membership in a “protected class.” An Arab employee or job applicant may be a member of a protected class based upon:
Additional protected classes include gender, age, disability, pregnancy, and genetic information.
While federal law does not specifically address discrimination based on perceived race, national identity or religion, the EEOC’s Compliance Manual prohibits discrimination based on perception. If you have questions about your membership in a protected class, contact an employment lawyer.
Typically, it is illegal for employers to:
- Ask a job applicant about their race, national origin, or religious affiliation,
- Ask a job applicant if they speak foreign languages (like Arabic or Farsi), unless it is a legitimate job requirement,
- Penalize someone for their racial, ethnic, or religious identity,
- Prohibit observance of religious obligations or traditions (unless it would cause undue hardship), or
- Create a hostile or harassing environment based on racial, national, or religious intolerance.
If you have suffered an adverse employment action for any of these reasons, you may have a claim against your employer.
Employers may defend their actions by proving that:
- The employment decisions were based on a bona fide occupational qualification (BFOQ), or
- Accommodation of a religious belief or practice would cause undue hardship.
A BFOQ must be a legitimate and essential requirement of a job—and not based on stereotypes or inaccurate perceptions (such as customers’ perceived discomfort with Arab employees). Similarly, an undue hardship defense cannot be based on an assumption that all Arab employees want or need the same accommodations.
What Kinds of Legal Claims Can Arab Employees Bring if They Are Harassed?
Arab victims of discrimination may have claims under federal, state, and municipal law. Typically, you must choose between these causes of action (and cannot file multiple claims with multiple courts or agencies). Since different laws offer different remedies (and have different filing deadlines), it is important that you choose the correct claim. An employment lawyer can help you determine which cause of action is best in your case.
Most federal claims involve filing a complaint with the EEOC. Typically, you must file a complaint with the EEOC within 180 or 300 days of the discriminatory event. The EEOC will investigate your claim and may decide to file a lawsuit on your behalf. If it decides not to prosecute your employer, you will have the right to file your own federal lawsuit.
State and municipal (city-based) laws vary. In some cities or states, you may have to file a complaint with an anti-discrimination agency before filing a lawsuit. In others, you may be able to file a lawsuit immediately. Make sure you understand your community’s legal requirements before filing a complaint or lawsuit.
Does it Make a Difference if the Harasser Is Another Employee?
Illegal harassment creates either a hostile work environment or leads to an adverse employment action. Typically, there must a pattern of harassment and misconduct—a single offensive joke may not be considered illegal harassment. While employers have a duty to prevent and stop harassment in the workplace, federal law treats the harassment of supervisors and fellow employees differently.
If a supervisor discriminates or harasses an Arab employee, the employer is probably liable for the harassment. However, an employer is liable for a fellow employee’s harassment only if it negligently failed to prevent or correct the behavior. (Vance v. Ball State University, 133 S. Ct. 2434 (2013)).
It is important that victims of anti-Arab harassment notify a supervisor or human resources representative of the offensive behavior. If an employer disregards the complaints or does not reasonably correct the harassing behaviors, it may be liable for discrimination.
What Kinds of Remedies Are Available?
If you were the victim of Arab discrimination, you may be entitled to a variety of damages. These damages may include:
- Economic damages (reimbursement of lost wages and out-of-pocket expenses),
- Non-economic damages (compensation for pain and suffering),
- Job reinstatement, and
- Punitive damages (damages that punish an employer for serious misconduct).
Depending on the federal, state, or municipal law, you may also be entitled to reimbursement of your attorney fees.
Do I Need to Speak with a Discrimination Lawyer?
If you have been the victim of discrimination, you should consider contacting an employment lawyer. A discrimination lawyer can review your claim, guide you through the complaint process, and help you choose the correct cause of action.