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On the Legal Front:  Implications of 9/11 for the Workplace

Art Gutman
Florida Institute of Technology

In early September I was thinking about my January column, unsure whether to write about sexual harassment or affirmative action or both. That debate ended abruptly with the attacks on the World Trade Center and the Pentagon on 9/11/01. Immediately, my thoughts wandered well beyond the Legal Front to the much larger arena of terror and its implications for family, friends, and for our way of life. When my thoughts wandered back to the column, I started thinking of how the 9/11 attacks impact the Legal Front, both in society at large, as well as in the workplace.

 The Larger Arena

As for society at large, I kept thinking about Pearl Harbor. That, in turn prompted images of internment of Japanese Americans during WWII. So I read two of the relevant Supreme Court cases; Hirabayashi v. United States (1943) and Korematsu v. United States (1944). Without going into grand detail, we had a combination of a War Powers Act from Congress and an executive order (EO 9006) from the president which, taken together, provided the military command with extraordinary powers to create and enforce curfews, and ultimately to intern all people of Japanese descent into camps, including American-born American citizens and immediate relatives of Japanese-American U.S. combat soldiers.1

1 It should also be noted, however, that President Roosevelt used his wartime powers to issue three executive orders (EO 8802, 9001, & 9346), each designed to prohibit discrimination in defense contracts based on race, creed, color or national origin (where creed was the then code word for religion).

The rationale for our WWII actions was twofold: (a) the United States was attacked by a foreign power for the first time since the War of 1812; and (b) there was probable cause to believe that there were Japanese spies on our shores and, possibly, Japanese Americans who sympathized with the enemy. Rational thought dictated that those who would hurt us were likely in a small minority. Nevertheless, when challenged under the Due Process Clause of the 5th Amendment, the Supreme Court, in both cases, deemed that the fear of unfriendly aliens among us was rational and the actions (e.g., curfews and internment) were supported based, essentially, on the belief that it would be difficult, if not impossible, to distinguish friend from foe.

Fast forward to 9/11/01 and we have parallel events, but a different federal response. There was (a) a direct attack on continental U.S. soil and (b) perpetrators identified as Arab Muslims. However, in the words of our president, the enemy in this war is not religion or nationality, but rather evil. So, even though as in WWII the case can be made that there are (a) spies and sympathizers among us and (b) it is difficult to discriminate friend from foe, the presidential and congressional response was an antiterror statute which gives the Justice Department extraordinary powers but instructs the rest of us to respect the rights of all religions and nationalities.

The Workplace

The moral is, as the president states, to be vigilant but not vigilantes. This is as true for the workplace as it is for the community. The president has made it clear that it is a federal responsibility to investigate and enforce the new antiterror statute. By implication, our task in the workplace remains as it was before, to understand and act in accordance with the existing antidiscrimination laws and to advise our students and clients accordingly. That being the case, let us turn to the admittedly less spectacular issues associated with relevant EEO Laws.

Discrimination Based on Citizenship

Selection based on citizenship has obvious implications for adverse impact on legal aliens. Although the case law in this domain is dated, it seems quite clear. In a nutshell, private and federal entities may discriminate based on citizenship, whereas state entities may not. However, there is also a critical caveat for private entities.

The citizenship issue emerged in a 14th Amendment case in which the Supreme Court struck down an Arizona law requiring 15 years of residency for eligibility for state welfare benefits (Graham v. Richardson, 1971). The Supreme Court subsequently ruled against New York City for discharging four legal aliens for not becoming U.S. citizens (Sugarman v. Dougall, 1973) and against the Connecticut Bar Association for denying access to the state bar exam to a Dutch citizen (In Re Griffiths, 1973).

During this era, the EEOC wrote the following 1972 guideline targeted toward private entities:

Because discrimination based on citizenship has the effect of discriminating on the basis of national origin, a lawfully immigrated alienmay not be discriminated against on the basis of his citizenship.

However, in Espinoza v. Farrah (1973), a Title VII case in which a private clothing manufacturer excluded a lawfully immigrated (Mexican) alien, the Supreme Court ruled that aliens are protected from illegal discrimination under the Act, but nothing in the Act makes it illegal to discriminate on the basis of citizenship or alienage.

Subsequently, in Matthews v. Diaz (1976), in a 5th Amendment case, the Supreme Court upheld a Social Security Act provision requiring a 5-year residency for federal Medicare supplemental insurance, ruling that:

The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusions that aliens are entitled to enjoy all the advantages of citizenship.

In comparing this ruling to its prior 14th Amendment rulings, the Supreme Court also ruled it is the business ofthe Federal Government, rather than...the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens.

The caveat for private entities stems from the Farrah case, in which one Hispanic was not hired and another Hispanic was, the difference being that the one excluded was not a citizen, whereas the one hired was a citizen. The Supreme Court made it clear that it would not have supported the employer had an Hispanic noncitizen been excluded in favor of (for example) an Irish noncitizen. The moral, therefore, is that a noncitizenship policy, though legal, should not be selective in its application.

Accommodating Sincerely Held Religious Beliefs

Beyond the obviousthat a persons religion should not enter into a personnel selection decisionthere is a more subtle issue regarding reasonable accommodations for sincere religious beliefs. The nuts and bolts on this issue may be found in two Supreme Court rulings ( TWA v. Hardison, 1977 and Ansonia Board of Education v. Philbrook, 1986) and a 5th Circuit ruling (Brener v. Diagnostic Center Hospital, 1982). Most scenarios feature (but are not limited to) Sabbath and religious holidays. Taken together, the key rulings imply four major points: (a) applicants and/or employees must request accommodation; (b) both sides must flexibly interact to identify potential accommodations; (c) any accommodation that works is reasonable; and (d) hardships that are more than de minimis are undue. More specifically, it is an undue hardship if an accommodation involves any additional monetary cost or loss of productivity or efficiency.

There are some unusual issues in this domain (e.g., sacrificing animals, smoking peyote, etc.). But there are also issues that are easy to overlook. For example, in United States v. Philadelphia Board of Education (1990), the 3rd Circuit ruled that the right to wear religious garb violates religious neutrality if done in a public school classroom. On the other hand, in EEOC v. United Parcel Service (1996), the 7th Circuit ruled that Islamic beliefs shield the right to wear a beard so that to accommodate by restricting the believer to jobs involving no contact with the public is unreasonable.

More generally, case law reveals circumstances where being beardless is job related (e.g., fire fighting; see Fitzpatrick v. City of Atlanta, 1993) and cases where it is not (e.g., pizza delivery; see Bradley v. Pizzaco of Nebraska, Inc., 1993).2 The same reasoning undoubtedly applies to any type of grooming or dress code. The moral, therefore, is to use pre-9/11 judgment. If an employer does not have a legitimate business reason and/or did not have or was not contemplating policies involving grooming, dress codes, and other like issues, this is probably not the time to contemplate or institute them.

2 In these two cases, the issue was the adverse impact of a no beards rule on blacks. However, this case law seems equally as applicable to sincerely held religious beliefs.

Speak-English-Only Rules

I cited this issue in the last edition of TIP (October, 2001). Historically, English-only rules have featured (a) Hispanic plaintiffs and (b) language used when conversing on ones own time (e.g., lunch). In Garcia v. Gloor (1980), the 5th Circuit rejected a challenge to an English-only policy, prompting an update to the EEOC Guidelines opposing that ruling, as well as a 1983 EEOC opinion (EEO Decision 83-7) in which the EEOC argued that English-only policies are unlikely to be job related, unless related to legitimate safety concerns. In Garcia v. Spun Steak (1993), the 9th Circuit overturned the EEOC guidance, prompting the EEOC to respond:

The 9th Circuits decision is the only appellate level ruling involving English-only requirements in 14 years since EEOC promulgated national origin guidelines, creating speculation that the Court denied review in Garcia to allow other circuit courts to weigh in on the English-only issue.

More recently (April 20, 2001), the EEOC announced a $2.44 million settlement against the University of the Incarnate Word on behalf of 18 Hispanic housekeepers required to speak only English on the job, during breaks, and during lunch time. In short, this is one issue the EEOC is likely to continue to challenge.

The moral here mirrors what was said about grooming and dress codes. If there is no legitimate business safety concern and the employer did not have and was not contemplating an English-only rule prior to 9/11, this probably is not the time to contemplate and/or institute a rule prohibiting individuals who speak Arabic languages (or any other foreign tongue) from doing so on their own time.

Other Related Laws

The various rulings cited above are primarily from Title VII and, to a lesser degree, the 5th and 14th Amendments. But other laws (and amendments) are worth noting.

To begin with, Title VII is not the only applicable law on some of the issues cited above. Section 1981 of the Civil Rights Acts of 1866 and 1871 is also relevant and applies, like Title VII, to private entities. However, where Title VII requires 15 or more employees, Section 1981 applies to the smallest of mom and pop shops. Although the 13th Amendment (upon which Section 1981 is based) applies to race (it ended slavery), by 18th-century standards, race includes religion and national origin (see for St. Francis College v. Al-Khazraji, 1987 and Shaare Tefila Congregation v. Cobb, 1987). Therefore, although Section 1981 does not encompass reasonable accommodation for religious beliefs, it likely encompasses all the variations of disparate treatment based on religion or national origin.

In addition, there is the Immigration Control Act of 1986 (or IRCA), the main purpose of which is to control the flow of illegal aliens. IRCA mandates employer responsibility for ensuring that employees are properly authorized to work in the United States. Although IRCA also has some nondiscrimination provisions,3 the core of this implies monitoring. IRCA is enforced by the Justice Department, and it is possible it will become an important adjunct to the newly enacted antiterrorism statute.

3 There are prohibitions against discrimination based on national origin, citizenship and/or intention to become a citizen, and a 1990 amendment where protections are extended to seasonal agricultural workers.

Finally, there are issues associated with 1st Amendment (speech) and 4th Amendment (privacy) rights. Many of us will undoubtedly become more vigilant with respect to what others say, and many employers may opt to more closely monitor employee use of company resources (e.g., the Internet). The major concern here is not the heightened vigilance, but rather, selectivity.

For example, consider the following personal experience. In early October, my wife, a licensed clinical psychologist, volunteered for 8 days to counsel grief-stricken families who lost loved ones in the World Trade Center attack (I am so proud). She worked as a member of a Florida disaster response team. Upon her return from New York City, I met her at the West Palm Beach airport. I chose to park closer to the terminal and, therefore, was subject to heightened security. Police and airport security checked every car (and driver) that chose to park in Premier Parking. Interestingly, the driver in front was Middle Eastern, and every inch of his car was inspected; it took nearly 5 minutes. In my case, the inspection was far less scrutinizing; it shouldnt have been.

Conclusions

Its a time to be rational. Obviously, vigilance is required. At the same time, civil rights should be respected. Critically, our vigilance should not be restricted to the obvious. After all, its possible that someone of my description could have wrecked havoc at the West Palm Beach airport while focus was diverted elsewhere.

References

Ansonia Board of Education v. Philbrook (1986) 479 US 60.
Bradley v. Pizzaco of Nebraska Inc. (CA8 1993) 7 F.3d 795.
Brener v. Diagnostic Center Hospital (CA5 1982) 671 F.2d 141.
EEOC v. United Parcel Service (CA7 1996) 94 F.3d 314.
Espinoza v. Farrah (1973) 414 US 86.
Fitzpatrick v. City of Atlanta (CA11 1993) 2 F.3d 1112.
Garcia v. Gloor (CA5 1980) 618 F.2d 264.
Garcia v. Spun Steak (CA9 1993) 998 F.2d 1480.
Graham v. Richardson (1971) 403 US 365.
Hirabayashi v. United States (1943) 320 US 81.
In Re Griffiths (1973) 413 US 717.
Korematsu v. United States (1944) 319 US 432.
Matthews v. Diaz (1976) 426 US 67.
Shaare Tefila Congregation v. Cobb (1987) 481 US 615.
St. Francis College v. Al-Khazraji (1987) 481 US 604.
Sugarman v. Dougall (1973) 413 US 634.
TWA v. Hardison (1977) 432 US 63.
United States v. Philadelphia Board of Education (CA3 1990) 911 F.2d 882.

 

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