Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.
Q. With everything happening in Iraq and Syria, people in my office have been expressing their disapproval of my Islamic beliefs. At what point does this become discrimination?
A. Several years after the terrorist attacks on the World Trade Center and Pentagon, the U.S. 4th Circuit Court of Appeals in EEOC v. Sunbelt Rentals, Inc. (2008) pointed out that Muslims had become “targets of gross misapprehensions and overbroad assumptions about their religious beliefs.” But while the events of 9/11 “shook the foundations of our buildings, [they] did not shake the premise of our founding — that here, in America, there is no heretical faith.”
Title VII of the Civil Rights Act protects employees from religious-based harassment that creates a hostile or abusive work environment. As abhorrent as anti-Islamic or anti-Semitic statements are, not all of them will violate Title VII. For a co-worker’s or supervisor’s anti-Islamic comments to create a hostile work environment, they must be unwelcome and “sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere.” Further, it must be shown that the employer engaged in, or did not take adequate steps to stop, the harassment, according to the 4th Circuit.
Harassment can be religious-based when co-workers or supervisors use religious epithets or other offensive religious terms, such as “Taliban” or “towel head,” or when they tease a Muslim employee about his kufi (traditional headgear) or beard, the court noted in Sunbelt Rentals. It is important for the employee to file an internal complaint in accordance with the employer’s anti-discrimination policy. This action would clearly establish that such discriminatory comments are unwelcome and place on employers the responsibility of countering such misconduct.
Initially, a district court dismissed the religious discrimination claim raised by the Muslim employee in Sunbelt, saying the co-workers’ comments were merely part of the “coarse behavior that goes on in the workplace.” The court also said some things the employee complained about, such as the hiding of his time card, had no connection to his religion. It also did not believe the co-workers’ comments were sufficiently severe or pervasive to create a hostile work environment because the employee did not mention the “explicitly religious incidents” in his written complaint to human resources.
On appeal, however, the 4th Circuit disagreed with the lower court’s decision, saying the employee persistently suffered from religious harassment of “the most demeaning, degrading, and damaging sort.” Key to this finding was the fact that the discriminatory conduct was “persistent, demeaning, unrelenting, and widespread.” The court stressed, “[W]e cannot regard as ‘merely offensive,’ and thus ‘beyond Title VII’s purview’ … constant and repetitive abuse founded upon misperceptions that all Muslims possess hostile designs against the United States.”
Employees who believe they are being harassed because of their religion and are working in a hostile work environment “must clear a high bar in order to satisfy the severe or pervasive test,” the appellate court said. That is why it is crucial for employees to consult with an experienced employment law attorney who can gather the testimony and other evidence necessary to pass that test.
Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com.
The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.