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In the wake of discrimination against people perceived to be of Middle-Eastern descent, courts have had to revisit the hazy boundary between race and national origin, as well as consider the potential overlap between these categories and religion.

Discrimination against Muslims and people of Middle Eastern descent (or people perceived to be Muslim or of Middle Eastern descent) pre-dates the September 11, 2001 attacks, but the harassment and violence perpetrated against them in the aftermath of that event has brought the contours of this bias into sharper relief. Federal employment discrimination case law shows that a peculiar conflation of race, ethnicity, national origin, religion, and culture is often the hallmark of post-9/11 discrimination. The muddled nature of this bias creates an added layer of complication for plaintiffs seeking relief for such discrimination through traditional civil rights laws, which were already unclear on the proper definition and treatment of race versus national origin claims.

As some commentators have noted, in this post 9/11 era, "Islamic religious difference has been racialized in the context of the war on terror." Anecdotal evidence compiled by The Council on American-Islamic Relations (CAIR) about the nature of civil rights complaints illustrates this point. Of the total 2467 civil rightsrelated complaints that it received in 2006, CAIR found that roughly 52 percent appeared to be have been prompted by the perceived ethnicity or religion of the victim.  "Muslim-sounding names" and cultural or religious activists or organizations constituted the next two largest targets of harassment.

Commentators contend that traditional antidiscrimination jurisprudence is often inadequate in acknowledging, let alone redressing such "religiously driven racial discrimination." Courts have had to revisit the hazy boundary between race and national origin, as well as consider the potential overlap between these categories and religion. Decisions do not reveal any consistent pattern in how judges will treat claims that reflect an amalgamation of these concepts. As a general matter, though, plaintiffs' lawyers should remember that the basic rules of thumb generally applicable to discrimination cases are particularly important when the dispute concerns a form of discrimination that does not fit traditional conceptions of a racial epithet, ethnic stereotype, or religious bias.

THE INTERSECTION OF RACE, RELIGION AND NATIONAL ORIGIN .

Title VII of the Civil Rights Act of 1964 "prohibits employment discrimination based on race, color, religion, sex and national origin." 42 U.S.C. §2000e. The Supreme Court has interpreted Title VII's use of the term "national origin" as referring "to the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). EEOC Guidelines define national origin discrimination "broadly, as including, but not limited to, 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 the physical, cultural or linguistic characteristics of a national origin group." 29 C.F.R. §1606.1.

Whereas Title VII expressly proscribes both race and national origin discrimination, Section 1981 of the Civil Rights Act of 1866 guarantees the right of all people within the jurisdiction of the United States to "to make and enforce contracts, to sue, … and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." 42 U.S.C. §1981. In Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987), the Supreme Court clarified that this meant individuals have a private right of action for discrimination in the making of public and private contracts, if the discrimination is based on race. Id. at 609, 613. However, the Court stressed that when determining whether a given claim describes the type of conduct prohibited by Section 1981, the relevant inquiry is not whether "it would be classified as racial in terms of modern scientific theory." Id. at 613. Since informal notions and social science definitions of "race" have changed over time, the guiding principle in understanding Section 1981's breadth is Congress's intent when the statute was passed--"to protect fromdiscrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics." Id.

Some courts have read Al-Khazraji to mean that Section 1981 protects against race discrimination but not national origin discrimination. Other courts have viewed the decision as holding that national origin discrimination may be actionable under the statute, but only if race discrimination is also implicated in the complaint. E.g., Amiri v. Hilton Wash. Hotel, 360 F. Supp. 2d 38, 42 (D.D.C. 2003). Thus, when bringing claims under Section 1981, plaintiffs must be sure to plead facts and allegations that will show that they were discriminated against "because of their ancestry or ethnic characteristics" and not based "solely on the place or nation of [their] origin, or [their] religion." Al-Khazraji, supra, 481 U.S. at 613. Otherwise, plaintiffs risk having their claims dismissed for failure to state a claim or losing on the merits.

CONCLUSION

With inevitable changes in U.S. demographics and the uncertainty of world events, the face of discrimination and its victims in the coming years is unclear. While the cases discussed here deal specifically with the post-9/11 backlash, these decisions have left an imprint on employment discrimination jurisprudence generally. If anything, they are reminders about the need to go back to basics in any kind of litigation--but particularly when dealing with issues that are novel or, at least, deviate from the norm.

If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

Source-   Anjana Samant, RACE, RELIGION, AND NATIONAL ORIGIN IN POST-9/11 EMPLOYMENT DISCRIMINATION CASES, The Practical Litigator (March, 2009)