Ethnic or national origin discrimination has assumed a new significance in the aftermath of the terrorist attacks of September 11. Although the issue is not new, the magnitude is. A study released by the Council on American-Islamic Relations (CAIR) on August 22, 2001, shortly before the attacks, found Anti-Muslim incidents were already up by 15% between March 2000 and March 2001. Almost half of the 366 discriminatory incidents reported allegedly involved the workplace.

Now, after September 11, these incidents are sure to rise as employees express their patriotism and fury simultaneously. Tolerance for those individuals who fit into the same ethnic or religious "categories" of the airplane hijackers, Muslim and Middle-Eastern, has already diminished since the attacks. Radio talk shows often describe Muslims and Arabs as the enemy in the new "War on Terrorism." A recent article in The New York Times quoted a number of African-American and Latino Americans, both traditionally victims of profiling, as admitting that even they cannot help being wary of Middle Eastern people in the wake of the attacks.

Moreover, the fact that many of the alleged hijackers and their co-conspirators apparently lived peacefully in the United States for years and presumably benefitted from their neighbors' religious and ethnic tolerance, does not help matters. Nor does the sight of demonstrators in Middle Eastern countries who cheered the attacks and burned American flags.

To their credit, the media and many political leaders, including President Bush, have cautioned Americans to beware of discriminating against the vast majority of Middle Eastern people and Muslims who are peaceful and law-abiding. However, the brutal nature of the attacks, coupled with the natural human tendency to stereotype, may render some such discrimination unavoidable.

As a result, companies are now concerned about how to prevent anger and intolerance from spilling over into their work environments. Employers have already had some uncertainty with regard to their obligations in employing individuals with different cultural backgrounds. Now that task may seem more daunting than ever before.

To understand ethnic or national origin discrimination, one must first understand its roots. National origin and religious discrimination are prohibited under Title VII as well as under several state and local laws. The EEOC defines national origin discrimination as the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has physical, cultural, or linguistic characteristic of a national origin group.

National origin discrimination can take several forms. Of course, there is "traditional" national origin discrimination in the form of English fluency requirements, "English-only" rules, prohibitions of foreign accents, and height and weight requirements. Employers may also be liable for national origin discrimination after an adverse employment decision (such as a termination) if there is proof the manager made the termination decision as a result of his or her general bias against the individual's ancestry. Plaintiffs often present evidence of derogatory racial slurs like "damn Arab," "desert people," "camel jockey" or "towel head" to show such bias.

Plaintiffs can also bring claims for national origin "harassment." This claim, like its more familiar sexual and racial varieties, arises when an intimidating, hostile or offensive work environment is created through the use of ethnic slurs or other verbal conduct relating to an individual's national origin. The following are examples of conduct courts have found to contribute to a work environment hostile to national origin:

• Supervisors calling Hispanic employees "dirty greasers"
• Employees repeatedly taunting Polish-American employees with Polish jokes
• Employees repeatedly referring to an employee as a "camel jockey" and a "rich Arab"
• A manager asking an employee if he was involved in the Olympic bombing in Atlanta
• Allowing the proliferation of demeaning literature and epithets against Hispanic correction officers.

While courts have held an isolated instance of extremely serious harassment may give rise to a claim, they have consistently stated an employer is not liable if an employee has been subjected to only random or isolated comments or conduct. In determining "how much is too much" the employer must consider both the victimized employee's perception of the conduct as well as the objective perceptions of a "reasonable person."

As with sexual harassment, whether the work environment is "hostile" or "abusive" is determined by looking at all the circumstances — the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or only an offensive utterance; and whether it unreasonably interferes with an employee's work performance.

It is difficult, if not impossible, to prevent all ethnic-based bias and harassment in the workplace. However, such claims can be minimized and liability avoided by taking a few simple precautions:

• Implement and communicate a No Harassment Policy, which includes harassment because of national origin. Investigate, resolve and document any harassment claims as soon as they are brought to your attention.

• Educate employees about the unique cultural traits of the different national origin groups in the workplace. Emphasize that the extremists who planned and carried out the attacks are not representative of people of the Middle East or of Muslims.

• Encourage employees to express their patriotism in a positive manner rather than advocating intolerance of Middle Easterners or Muslims ("God bless American," yes; "death to Afghans," no.) Make it clear to all supervisors and employees that any kind of religious, national origin or ethnic slur will not be tolerated in the workplace.

• Supervisors should never make any national origin-based remarks and should not allow employees to make them. Even comments that are intended to be humorous must be prohibited.

• If your company has a number of Muslim or middle-eastern employees, consider holding employee meetings to specifically address the implications of the terrorist attacks and effect on the workplace. These will also provide a good opportunity to remind employees of your company's policy against any type of discrimination or harassment based on national origin or religion.

• Managers and supervisors should be careful in discussing the derivation of an employee or applicant's sir name, or even their first name. While this might be viewed as polite conversation or a desire to learn about a particular culture, such "innocent" conversation may subsequently be used to bolster a national origin claim.

• Employers may want to keep in mind that even individuals who are not authorized to work in the United States can claim national origin bias under certain circumstances.

The legitimate and understandable American anger over the World Trade Center and Pentagon attacks has expanded an already-challenging issue in the workplace and in American society. Companies must be sensitive to the devastation which has affected their employees and our country, while at the same time be intolerant of behavior which categorizes certain individuals unfairly. The solution may lie in communication and education. Employers who are already proactive with regard to their harassment and discrimination policies and procedures should continue to be proactive. Those who are not should use this time of upheaval as an opportunity to implement harassment and discrimination policies applicable to sex, race, national origin, and religion, and educate their employees along the way.

For further information on national origin discrimination, or for training materials on harassment and other cultures, including documented descriptions of various cultural characteristics, contact your Constangy, Brooks & Smith attorney or Teresa Bult or Craig Moore in the Nashville, Tennessee office at 615/320-5200. Constangy, Brooks & Smith has been counseling management, exclusively, on labor and employment issues since 1946.