EEOC-Initiated Litigation - 2022 Edition

21 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP C. Protection Of Immigrant, Migrant, And Other Vulnerable Workers The EEOC’s SEP identifies the protection of immigrant, migrant, and other vulnerable workers as a national enforcement priority. Much of that activity in recent years has focused on three issues: (1) the protection of employees against religious bias in the workplace, especially Muslim employees; (2) national origin discrimination that is exacerbated by political and cultural developments around that world that impact U.S. society; and (3) protecting the rights of immigrants to seek assistance from the EEOC and the Courts to combat and remedy illegal discrimination. 1. Enforcement Developments In Religious Discrimination For several years, the EEOC’s SEP identified as one of its top strategic enforcement priorities “[a]ddressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, arising from backlash against them from tragic events in the United States and abroad.” 129 According to the SEP, the EEOC continues to see an increase in charges involving religious discrimination against Muslims and those with a Middle Eastern background. 130 The EEOC’s focus on anti-Muslim bias has often centered on the protection of employees who face discrimination because of their religious attire or grooming. The EEOC has repeatedly stressed that employers may not refuse to hire someone who, because of their religious attire, may make customers uncomfortable; nor can they force an employee to remove their religious attire or change their duties to keep them out of view of the public . 131 According to the EEOC, even if an employer does not know that an employee’s or applicant’s garb or grooming practice is religious in nature, the employer may still be liable if it believes or should have known that it is – even if the employee did not ask for an accommodation. 132 On June 1, 2015. In EEOC v. Abercrombie & Fitch Stores, Inc . 133 the U.S. Supreme Court agreed with the EEOC, holding that an employer that is without direct knowledge of an employee’s religious practice can be liable under Title VII for religious discrimination if the need for an accommodation was a motivating factor in the employer’s decision, whether or not the employer knew of the need for a religious accommodation. 134 The EEOC continues to bring – and win – cases under the Abercrombie standard. For example, in EEOC v. Greyhound Lines, Inc. , 135 the EEOC alleged that the employer had discriminated against an observant Muslim woman when it refused to allow her to wear an abaya, a loose-fitting, floor-length garment worn by some women in the Muslim world. 136 Although the charging party withdrew from employment after learning of this prohibition, the EEOC alleged that this was an unlawful denial of religious accommodation, which 129 U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017 - 2021, https://www.eeoc.gov/eeoc/plan/sep-2017.cfm. 130 Id. 131 On March 6, 2014, the EEOC published its Guide to Religious Garb and Grooming. U.S. Equal Employment Opportunity Commission, Religious Garb and Grooming in the Workplace: Rights and Responsibilities (Mar. 6, 2014), http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm. In that guidance, the EEOC instructs that an employer must accommodate an employee’s religious garb or grooming practice even if it violates the employer’s policy or preference regarding how employees should look. The EEOC also recently issued guidelines relating to the employment of Muslims, Arabs, South Asians, and Sikhs. See U.S. Equal Employment Opportunity Commission, Questions And Answers About Employer Responsibilities Concerning The Employment Of Muslims, Arabs, South Asians, And Sikhs , https://www.eeoc.gov/eeoc/publications/backlash-employer.cfm. 132 U.S. Equal Employment Opportunity Commission, Religious Garb and Grooming in the Workplace: Rights and Responsibilities , supra note 134, at Example 7. 133 EEOC v. Abercrombie & Fitch Stores, Inc. , 135 S. Ct. 2028 (2015). 134 Id. at 2031-32. “The rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Id. at 2033. 135 EEOC v. Greyhound Lines, Inc. , No.19-CV-1651, 2021 WL 3565728 (D. Md. Aug. 12, 2021). 136 Id . at *1.