EEOC responds to Israel-Hamas conflict with fresh guidance

Published: February 1, 2024 | by Robert S. Teachout, Legal Editor at Brightmine

The Equal Employment Opportunity Commission (EEOC) has published an Anti-Arab, Anti-Middle Eastern, Anti-Muslim, and Antisemitic Discrimination infographic.

The fact sheet explains what constitutes unlawful discrimination under Title VII of the Civil Rights Act, with examples of how that might look in the case of Arab, Muslim or Jewish employees. For instance, treating an individual adversely based on their actual or perceived religious practices or membership in a particular racial or national origin group (e.g., Israeli or Palestinian).

The EEOC guidance also explains that conduct that occurs outside of work can contribute to a hostile work environment, such as an employee posting religious slurs about a Muslim or Jewish coworker on their personal social media. Such actions can affect the workplace if the targeted coworker learns about the posts, or if coworkers see and discuss them at work.

A single incident of workplace harassment can create a hostile work environment if it is sufficiently severe, the infographic states, such as the display of certain symbols of violence or hatred (e.g., a swastika) toward individuals sharing the same protected characteristic based on an individual’s actual or perceived religion, national origin, or race.

EEOC Comments

The EEOC released the new fact sheet as part of its continuing work to make employees and employers aware of their rights and responsibilities under federal EEO laws, EEOC spokesperson Brandalyn Bickner told Brightmine, formerly XpertHR. “While we cannot provide specific charge numbers, the EEOC has been engaging with other federal agencies, community groups and workers to address increased discrimination, harassment and retaliation since the attacks of October 7, 2023, and during the ensuing conflict.”

Addressing discrimination influenced by or arising as backlash in response to global events, including anti-Arab, anti-Muslim, anti-Palestinian, anti-Israeli and antisemitic discrimination, is a priority under the EEOC’s Strategic Enforcement Plan for FY 2024-2028, Bickner said.

Employer Takeaways

Jonathan Segal, a partner at Duane Morris and managing principal of the Duane Morris Institute, agreed that this information needs to be elevated.

“In response to Hamas’ attack of Israel on October 7, and before Israel even responded, we saw an explosion of antisemitism. There were, quite literally, public celebrations. Since then, anti-Jewish incidents (physical and rhetorical) have continued to escalate to alarming levels,” Segal said. “We also have seen an escalation of anti-Muslim incidents, physical and rhetorical. In all likelihood, we will see the greatest levels of Islamophobia since the aftermath of 9-11, when there was an anti-Muslim fever.”

Segal warns employers that individuals with bias against Jews, Israelis, Muslims, Arabs and/or Palestinians don’t always check their bias at the workplace door. He advises employers to educate their leadership teams on religious and related ethnic bias so they do not engage in it and can respond appropriately if they see, hear or otherwise become aware of the bias, even in the absence of a complaint:

• When it comes to discrimination, training needs to focus on “adverse actions” based not only on unalloyed animus but also on demeaning stereotypes. It also is important to remember that customer preference is never a defense to religious or ethnic bias.
• When it comes to harassment, training needs to focus on not only hate symbols and words but also on conspiratorial comments about both Jews and Muslims. Even if such comments are not bad enough to be unlawful, they still can infect the culture, undermine inclusion and serve as evidence in discrimination claims.

Most importantly, Segal said, employers must take prompt and proportionate action to correct any religious or ethnic discrimination or harassment. “Such discrimination and harassment must be treated as seriously as racial or gender bias, but too often it is not.”