LEGAL
Anti-Muslim rhetoric dominates many media headlines. A May 9, 2017, decision by the U.S. Court of Appeals for the Second Circuit highlights the risks to an employer when anti-Muslim rhetoric enters the workplace.
In Ahmed v. Astoria Bank et al, the Second Circuit considered a claim brought by a plaintiff employee who had been terminated from her employment at Astoria Bank, at the end of her probationary period, for tardiness and carelessness in checking important documents. The employee’s claims included that she had been subjected to a hostile work environment because she is Egyptian and Muslim.
The District Court had granted summary judgment to the employer. As to the hostile-environment claim, the Court had reasoned that the alleged stray comments did not rise to the required “severe and pervasive” level. The employee appealed only the ruling on the hostile environment claim.
The Second Circuit reversed, holding that a reasonable jury could find that the employee was subject to severe and pervasive discriminatory harassment. The Court relied principally on the employee’s evidence that the supervisor “constantly” told her to remove her hijab head-covering, which he referred to as a “rag;” demeaned her race, ethnicity, and religion “on several occasions;” and made a comment during her September 11, 2013, interview that she and two other Muslim employees were “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything.”
Considering this evidence, together with allegations such as that another manager used hand gestures and spoke slowly to the plaintiff in everyday conversation as if to suggest she did not know English, the Second Circuit held that a jury could conclude that the plaintiff was subject to a “steady barrage of opprobrious” racial and anti-Muslim comments.
On that basis, while acknowledging the evidence was “on the knife’s edge” between summary judgment and trial, the Court reversed the District Court’s grant of summary judgment and remanded for a jury trial.
Concerns about anti-Muslim sentiment affecting the workplace are hardly new. We’ve blogged before about the EEOC’s 2016 Questions and Answers for employers concerning workers who are, or are perceived to be, Muslim or Middle Eastern.
In that publication, issued in the wake of the Paris and San Bernandino attacks, the EEOC posited that, “Reactions in the workplace to world events demand increased efforts by employers to prevent discrimination.” Since then, the need has arguably only increased.
Employers can take preventative steps to mitigate the risks.
Dawn Solowey is senior counsel in the Labor & Employment Department in the Boston office of Seyfarth Shaw LLP. Ms. Solowey is an experienced litigator who represents management clients in labor and employment litigation in federal and state courts, in arbitration, and in the Equal Employment Opportunity Commission and equivalent state agencies.