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‘That head scarf thing’: Insensitive comments spark legal fire

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in Discrimination and Harassment,Employment Law,Human Resources

by Mindy Chapman, Esq.

You’re a tolerant, open-minded person. You’ve hired people of all races and religions, including a woman who wears a head scarf (hijab). But what do you say when that woman seeks a promotion to a more visible position? A few unwise words coupled with foot-dragging on the promotion and you’ll be wrapping your head around a religious discrimination lawsuit.

Case in Point: A restaurant in Ellensburg, Wash., hired Angela Harper, a 20-year-old African-American Muslim, for a dishwasher job. Harper wore a hijab for modesty in respect of her religion.

Months later, Harper asked a restaurant manager to consider her to be promoted to waitress. She was permitted to work only the less lucrative breakfast and lunch shifts. Harper asked to work the better dinner and cocktail shifts but was told no openings were available. However, over the next two years, the restaurant hired eight white employees as cocktail and dinner waitresses.

The restaurant owner told Harper, “It wasn’t about your race, it was more about your scarf thing. You know how people in Ellensburg are. They’re not gonna want to see, you know, a girl like that on the cocktail shift … It was a business decision, it was nothing against you.”

Eventually, the owner offered Harper a cocktail server position, but Harper felt the offer was insincere and quit. Harper filed an EEOC claim for religious discrimination.

The court last month agreed to send the case to a jury trial, saying the owner’s after-the-fact promotion offer “was disingenuous … and designed to mask [the owner’s] disparaging comments and appearance of impropriety.” (EEOC v. Starlight LLC, 8/04/08)

2 lessons learned

1. Zip it. Don’t ask, inquire or speculated about an employee’s religious beliefs, clothing or jewelry. The owner wanted to know whether Harper could “wear a fancier headdress” possibly so she looked “hotter” when serving cocktails. The court looked upon such an inquiry as religious animosity. Hire and promote based only on skills and talent.

2. Intentions don’t count, perceptions do. It didn’t matter that the owner was inquiring about “the whole Muslim thing” (as she so crassly put it) to become better educated. The employee perceived such comments to be signs of discriminatory beliefs.
Mindy Chapman is an attorney and president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. 

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