Written testimony before the Equal Employment Opportunity Commission (EEOC)
by Sahar F. Aziz
Our nation has a unique, long-cherished commitment to religious freedom. Indeed, the first wave of immigrants came seeking refuge from religious persecution in Europe. The free exercise of religion, regardless of one’s religious beliefs, is a fundamental right guaranteed to
all Americans and embodied in the First Amendment to our Constitution. As a result, America has become a diverse nation enriched by its multiple religious communities that practice their faiths freely and peacefully. America’s unique cultural tolerance for religious diversity is due in large part to the enforcement of constitutional rights and statutory laws that protect individuals and congregations from discrimination in public accommodations, education, and employment.
While most American residents voluntarily comply with anti-discrimination laws based on a personal commitment to equality and justice for all, religious bigotry exists in American society. One need only review the increasing number of lawsuits filed by the EEOC over the past ten years. In 1997, religious discrimination lawsuits made up only 2.1% of the EEOC’s docket. By 2010, the rate of discrimination lawsuits increased significantly to 3.8%. Similarly, religious discrimination charges filed with the EEOC increased dramatically by 35% from 2001 to 2008. A disproportionate number of religious discrimination charges were filed by employees who wear headscarves, turbans, or beards for religious reasons because these practices carry a stigma that falsely stereotype them as terrorist, disloyal, or suspect.
In the years immediately following the tragic September 11, 2001 terrorist attacks, there was an upsurge in hatred, violence, and discrimination against Muslims, Arabs and South Asians. Despite the passage of more than ten years, pervasive discrimination persists due to a variety of factors that directly impact the workplace. For example, media images stereotyping, dark-skinned, bearded males with Arabic-sounding names as representing the primary threat to the national security of the United States contribute to racial, national origin, and religious harassment in the workplace. Government selective counter-terrorism practices and policies have institutionalized a policy of discrimination against persons perceived to be Muslim, Arab, Middle Eastern, or South Asian on the basis of their name, race, religion, ethnicity, and national origin. The government’s disparate treatment of these communities, based on the pretext of national security, legitimizes workplace harassment. The result is a conflation of the racial Arab or South Asian with the religious category of Muslim coupled with the misperception that Islam is a radical and violent religion. Therefore, efforts aimed at combatting post-9/11 religious discrimination must adopt a holistic approach that rectifies the “bias legitimizing” actions of other government agencies.
Public opinion polls taken over the past ten years reflect this troubling reality. In a 2006 poll, forty-four percent of Americans believed Muslims are too extreme in their religious beliefs, twenty-two percent of Americans would not want a Muslim as a neighbor, and less than half of Americans believed American Muslims are loyal to the United States. Rather than wane with time, negative stereotypes of Muslims have become more pervasive as evinced in a 2009 poll reporting that fifty-three percent of Americans had a “not too favorable” view of Islam. Similarly, in September 2010, a Washington Post-ABC News poll showed that forty-nine percent of Americans held an unfavorable view of Islam, a significant increase from thirty-nine percent in October of 2002.
Thus, it should come as no surprise that fifty-three percent of Muslim Americans say it has become more difficult to be a Muslim in the U.S. since the Sept. 11 terrorist attacks. For some, it has been difficult to find a job. In 2003, the Discrimination Research Center conducted a study to determine the impact of ethnic names on hiring decisions. The Center sent out 6,000 fake resumes to temporary agencies throughout California. The resumes had identical qualifications but some had ethnically identifiable names. The study found that the resumes with identifiably South Asian, Arab, or Muslim names received the lowest response in five of seven California regions.
EEOC charge numbers are consistent with these findings. Between September 11, 2001 and March 2012, the EEOC received 7,019 charges of discrimination by Muslims, which often includes a religious discrimination claim coupled with an ethnic origin or race claim. Compared with the 2, 734 total charges filed in the years preceding 9/11, the rise in anti-Muslim sentiment in the workplace is glaring. But these numbers are misleading because many people in the Muslim, Middle Eastern, South Asian and Sikh communities are reluctant to report discrimination from fear of retaliation and losing their jobs in these difficult economic times. Considering that Muslims make up only two percent of the workforce, these numbers evince a disproportionately high rate of religious discrimination faced by Muslims or those perceived as such.
Sikhs have also experienced a disproportionately high rate of discrimination, often times because they are mistaken for Muslims. Since 2001, the EEOC has handled 125 religious discrimination claims filed by Sikh. But these numbers represent only the tip of the iceberg when it comes to measuring the full extent of religious discrimination against Sikhs and other religious minorities perceived as Muslims. For example, a 2007 survey of 500 Sikh adults in New York City conducted by the Sikh Coalition concluded that approximately ten percent of respondents experienced workplace discrimination because of their Sikh identity. A similar survey in 2010 of Sikhs in the San Francisco Bay Area revealed job discrimination rates of twelve percent. Such disparities between EEOC charge statistics and survey findings are due in large part to under-reporting based on reasonable fears of retaliation.
In the most cognizable cases, Sikh employees are subjected to defamatory slurs based on false stereotypes that Muslims are terrorists and Islam is a violent religion intent on killing Americans. However, a more subtle, but equally harmful, form of religious discrimination is on the rise. Sikh employees who wear religiously mandated turbans are increasingly segregated outside of public view. Invoking customer preferences or company image as pretext, employers segregate Sikhs, as well as headscarved Muslim women and Jewish men wearing yarmulkes, to lower paid, lower skilled, and dead end jobs. As articulated by Professor Dawinder S. Sidhu, such segregation leads to physical separation and isolation thereby creating “a distinct physical space to which an employee is restricted only because of his or her religious appearance, and a separate area where employees without this appearance are free to roam and associate.”
Workplace segregation adversely impacts religious minorities who don religiously mandated headscarves, turbans, yarmulkes, or beards. For example, segregated employees are relegated to a lower class, out of sight from customers and other co-workers. Consequently, they are unable to socialize with their peers, develop their customer service skills, interact with the public, and obtain the same opportunities for promotion and growth within the company. Moreover, public or employer bias as to who is worthy of representing the company are validated. In light of America’s troubling record of racial segregation and its subsequent prohibition, the pernicious effects of religion-based segregation should be acknowledged and rectified. Moreover, segregation based on religiously-mandated appearances arguably violates Title VII’s general anti-discrimination provision, which makes it unlawful for an employer to “segregate…his [or her] employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his [or her] status as an employee, because of such individual’s . . . religion.”
Unfortunately, the troubling rise in religious discrimination continues until the present day. According to the EEOC’s 2011 enforcement and litigation statistics, charges alleging unlawful bias based on religion were the fastest-growing category. Specifically, these charges rose 9.2 percent to 4,151 charges filed in fiscal 2011 from 3,790 charges filed in fiscal 2010.
While more time is necessary to fully explicate the nuances and extent of religious discrimination experienced by various religious groups, I will spend the remainder of my time to offer creative solutions and recommendations that I believe could preventatively decrease religious discrimination in the workplace. In the interest of time, I have summarized my recommendations with the expectation that a more in-depth discussion will occur during the question and answer portion of the hearing. Because the EEOC is comprised of highly trained and skilled attorneys and investigators, I expect some of my recommendations may already be under consideration, if not implemented. In such a case, I hope that my testimony provides validation of existing good practices.
My recommendations can be summed up in five overarching categories:
1. Adopt creative legal theories of liability and use case briefs to educate judges about post-9/11 religious discrimination;
2. Train federal agencies about the adverse workplace consequences of selective law enforcement and immigration enforcement;
3. Train private sector employers about the rise in religious discrimination and how to proactively prevent it;
4. Normalize images of religious minorities in government publications; and
5. Diversify points of contact in outreach to religious communities about their legal rights and remedies
Adopt Creative Legal Theories of Liability and Use Case Briefs to Educate Judges about Post-9/11 Religious Discrimination
1. Muslim women wearing headscarves, for example, are experiencing discrimination because they are “headscarved Muslim women” as opposed to because they are only a Muslim, women, or a particular ethnic or racial group. Intersectionality theories of liability are particularly salient in cases where another Muslim, i.e. a secular looking Muslim, or a non-Muslim female, does not experience discrimination thereby granting the employer a defense. For a more in-depth analysis of this issue, I direct you to the enclosed From the Oppressed to the Terrorist: Muslim American Women in the Crosshairs of Intersectionality in The Hastings Race and Poverty Law Review (2012). Therefore, the EEOC should develop and increase the use of intersectional theories of liability particularly as they apply to female religious minorities.
2. Invoke Title VII’s general anti-discrimination provision that prohibits segregation on account of religion in cases involving segregation of employees who wear religiously-mandated attire. Apply the reasoning found in the employment case law that prohibits race-based segregation to religion-based segregation.
3. Many hostile work environment cases aredismissed by the courts on summary judgment because of the failure of the courts to recognize the severity and pervasiveness of post-9/11 ethnic and religious harassment. For example, courts often mischaracterize religious slurs as excusable ignorance or protected political viewpoints about Arab culture, Islam or the Middle East, as opposed to actionable harassment. EEOC attorneys should include in their court briefs information that informs judges about the historical and cultural context in which slurs and epithets reflect the pervasiveness of anti-Muslim discrimination based on negative stereotypes and implicit bias that impede equal employment in the workplace.
Train Federal Agencies About Adverse Consequences of Selective Law Enforcement and Immigration Enforcement
Much of the EEOC’s effective outreach and litigation is undermined by other federal agencies’ discriminatory practices and offensve rhetoric about particular religions, especially in the area of law enforcement and immigration enforcement. While the EEOC does not have jurisdiction or authority to instruct other federal agencies how to execute their mandates, its anti-discrimination mandate should encompass educating other federal agencies on how they can avoid contributing to employment discrimination without compromising their mission. Examples include:
a. The Federal Bureau of Investigation often sends its agents to Muslim individuals’ workplaces when seeking a voluntary interview. These gratuitous visits signal to co-workers and supervisors that the individual is suspect, and consequently invites harassment based on racial and religious stereotypes. The EEOC should educate FBI agents about how certain investigatory tactics can devastate careers, and work with the FBI to find alternative ways of lawfully conducting their investigations.
b. The Department of Homeland Security’s Immigration and Customs Enforcement Office conducts aggressive raids of workplaces with large numbers of racial and religious minorities. In addition to resulting in the unlawful arrest and detention of lawful residents and US citizens, such raids validate stereotypes held by the public that immigrants from certain parts of the world or of certain faiths are illegally present in the United States. As a result, members of these communities face workplace discrimination from private actors who interpret selective enforcement based on race or religion, even if not explicitly stated, as legitimizing bias against certain minorities. The EEOC should educate DHS employees about the adverse workplace impact of such misguided practices and work with them to develop immigration enforcement strategies that do not reinforce false racial or religious stereotypes.
c. The Federal Bureau of Investigation National Terrorist Screening Center manages terrorist watch lists and the Department of Homeland Security Transportation and Security Administration enforces travel watch lists, which are a subset of terrorist watch lists. Courts have noted the alarmingly high number of false positives of Muslim male names. Consequently, many Muslim professionals who travel on business face humiliating and intrusive frisks every time they travel while their non-Muslim co-workers quickly pass through security. For many, they fear harm to their reputations among co-workers and supervisors as false stereotypes of Muslims as terrorists are corroborated by their disparate treatment in travel. The EEOC should educate the FBI and TSA about the harmful impact on employees of false positives and work with these agencies to improve the integrity of the watch lists.
Train Private Sector Employers about the Rise in Religious Discrimination
1. Although not required by law, some employers are screening job applicants against terrorist watch lists. Because the lists include many names that may be similar to the current or potential employee, employers may inadvertently exclude an applicant or discharge an employee based on its wrongful belief that the person is affiliated with, or suspected of being affiliated with, terrorist activities. Even worse, the employer may use such lists as pretext to discriminate without the employee’s knowledge. The EEOC should familiarize itself with the plethora of literature that documents the procedural and substantive flaws with terrorist watch lists and discourage employers from using these lists as employment screening mechanisms. The EEOC should encourage use of alternative, more reliable mechanisms for conducting employee background screenings.
2. Due to the EEOC’s limited resources, employer outreach activities should be targeted to industries that draw the largest numbers of discrimination charges. For example, Abed Ayoub of the American Arab Anti-Discrimination Committee reported that in 2010 the ADC received the highest number of complaints from the following industries: transportation and delivery, real estate and insurance sales, and the medical filed.
3. Religious discrimination, like other forms of discrimination, is often a result of the perpetrator’s ignorance or unfamiliarity with a particular religion. In light of the documented increase in discrimination against Muslims and Sikhs, the EEOC should adopt a proactive strategy to incorporate basic information about Islam, Sikhism, and other religions whose congregants are reporting workplace discrimination to all employers who receive EEOC training. In addition, consent decrees or case settlements should include a training segment about the basic practices of Islam, Sikhism, and other religions whose congregants are reporting workplace discrimination.
4. Employment discrimination literature suggests that claims for failure to accommodate are often filed against companies without accommodation policies or training for management positions about responding to requests religious accommodations. The EEOC should work with the private sector to develop and implement training programs and resources tailored to lower and middle management. The materials should instruct employers that segregation is not a reasonable accommodation if based merely on customer preference or a corporate image that discriminates on the basis of religion.
5. The 9/11 terrorist attacks triggered a cottage industry of “terrorism experts,” many of whom lack the objective credentials to provide the training, advice, or expertise they offer to government and private entities. Some of these purported experts’ primary objective is profit-seeking. However, others are politically-driven bigots that deploy fear tactics to perpetuate false stereotypes of Muslims as terrorists, Islam as violent and imperialistic, and Shariah law as a threat to the United States. Their conclusions rely on propaganda and materials not subjected to peer review. Some of these hate-mongers have been hired by law enforcement agencies as trainers, which have led to complaints that the government is training its cadets to suspect Muslims, and those perceived as such. Unfortunately, their hateful message has gained traction among certain parts of American society such that employees are acting on the misinformation. The EEOC should familiarize itself with the wealth of literature about these groups and proactively educate employers about this anti-Muslim movement that could infiltrate their workplace. The EEOC should follow the recommendations of the Office for Civil Rights and Civil Liberties at the U.S. Department of Homeland Security to vet all experts and trainers based on objective criteria such as education, relevant experience, and referrals.
Normalize Images of Religious Minorities in Government Publications
1. Most Americans’ exposure to religious minorities is within an exceptionalized context. Whether they are objectified in documentaries, typecast in movies, or vilified in the media, religious minorities of various faiths are rarely portrayed as ordinary Americans alongside other Americans who do not display ostensibly religious attire. Accordingly, the EEOC should proactively include pictures of Jewish men wearing yarmulkes, Sikh men wearing turbans, and Muslim women wearing headscarves in their online and print marketing materials. Such pictures need not be limited to materials focused on religious discrimination, but rather incorporated throughout the EEOC’s marketing materials. Likewise, the EEOC should recommend to employers that they adopt similar practices as a means of creating an inclusive, pluralistic work environment that accurately reflects the rich diversity of this nation.
2. In its work with other federal agencies to decrease religious discrimination, the EEOC should recommend that these agencies incorporate pictures of individuals wearing religiously-mandated attire in online and print materials distributed to the public. By expanding the public’s exposure to images of religious minorities beyond the anti-discrimination context, false stereotypes are countered and minorities are humanized as ordinary members of American society.
Diversify Points of Contact in Outreach to Religious Communities About Their Legal Rights and Remedies
1. Most religious communities are led by male congregants, whether as priests, preachers, rabbis, or imams. Similarly, elders dominate community leadership due to cultural norms and practices. As a result, the EEOC should be proactive in ensuring that a representative number of women and youth are included in community outreach efforts. Including their perspectives equips the EEOC to conduct more effective and inclusive enforcement and outreach.
2. Many employees experiencing discrimination do not complain because they fear retaliation or termination. If they are new immigrants to the United States, they may be from countries without laws that protect employees from religious discrimination. Thus, they are unaware of their rights in the American workplace. The EEOC should target its outreach to immigrant populations and make programs and brochures available in various languages. Such efforts would mitigate the problem of under-reporting found in many immigrant and minority communities.
3. National organizations representing minority communities have the resources and expertise to conduct sustainable outreach to government agencies. Notwithstanding their strengths, they do not always represent the unique perspectives of local and state organizations dealing with challenges unique to a particular locale. EEOC regional offices should proactively work with local and state community organizations, including religious institutions, to provide education and training on employee rights to the various religious communities within their jurisdiction.
In closing, I thank you for the opportunity to testify before you on these important matters that affect all Americans. Working together, we can protect America’s cherished values of equality and justice for all. I look forward to your comments and questions.
The article with all footnotes can be downloaded at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1459001 .
The views expressed herein are solely those of the author and do not represent the views of Texas Wesleyan University School of Law.
Professor Aziz thanks Texas Wesleyan law student Natalia Cashen for her excellent research assistance.
Sahar F. Aziz is Associate Professor of Law at Texas Wesleyan University School of Law
July 18, 2012