Despite myriad problems the biggest issue facing industry is rise in racial discrimination - Opinion - effects of World Trade Center and Pentagon attacks - Brief Article - Statistical Data Included

The tragic events of Sept. 11 and our country's subsequent war against terrorism have resulted in a significant financial impact on the restaurant industry.

Indeed, on a seasonally adjusted basis, eating and drinking places cut 42,000 jobs in October, which followed the loss of 43,000 jobs in September -- the worst employment performance in history for those two months, according to the National Restaurant Association.

The events of the past few months also have given rise to a plethora of workplace issues, such as privacy concerns regarding the surveillance of employees and the use of criminal background checks. Perhaps the most serious issue, however, has been the rise of harassment and discrimination against employees who are or are perceived to be Arab or Muslim.

On Nov. 19 the U.S. Equal Employment Opportunity Commission, or EEOC and the U.S. Departments of Justice and Labor issued a joint statement reaffirming the government's commitment to uphold the federal anti-discrimination laws in the aftermath of the events of Sept. 11.

The agencies pledged to intensify their efforts to combat discrimination in the workplace based on religion, ethnicity, national origin or immigration status. To that end the agencies encouraged victims to come forward, and they "have instructed those who work in the agencies to take prompt and appropriate action in response to complaints of employment discrimination relating to the events of Sept. 11 and the ongoing fight against terrorism."

That the government's pledge has real "teeth" is apparent from recent enforcement activity. In July 2001 the EEOC signed a consent decree with Federal Express, stipulating that the parcel-delivery service must change its "no beard" policy to accommodate Muslim employees. The agreement stemmed from a former employee's discrimination and retaliation complaint alleging that he was barred from wearing a beard and fired. The former employee received $70,000, and FedEx agreed to change its dress code and train its managers at the Augusta, Ga., facility where the employee worked regarding the new policy.

In light of the FedEx case employers should be taking the following affirmative measures to ensure that the work-place is free of harassment and discrimination:

Adopt and/or enforce a harassment policy

Employers should review their current policies and make sure that they specifically prohibit discrimination and harassment based on religion, ethnicity and national origin. To be effective, a copy of the policy should be distributed to each employee and should prohibit harassment by anyone -- supervisors, coworkers or patrons -- in the workplace, and it should encourage employees to report any harassment. The policy also should provide a complaint procedure that all employees are required to utilize.

Provide training

It also is essential that supervisors, managers and employees receive periodic training about the policy that can be documented. Such training should explain the types of conduct that violate the policy, the seriousness of the policy, the responsibilities of the supervisors and managers to respond to complaints and the prohibition against retaliation.

Review policies

Employers also should review their handbooks and policies to make sure they are justified by legitimate business purposes and are not discriminatory. In particular, employers should reexamine grooming policies and any policies or rules against speaking other languages. Requiring employees or applicants to be fluent in English may violate federal law if the rule is not related to job performance. EEOC investigations will focus on the qualifications of the person and whether his or her accent or manner of speaking had a detrimental effect on job performance.

Do not talk politics

To the extent possible, management should refrain from expressing their viewpoints about Sept. 11 and its aftermath. Discussion about the tragedy can become passionate, and things might be said that later could be used as evidence of an intent to discriminate. For example, even before the tragedy an employee brought against his employer a successful action alleging discrimination based on his Pakistani national origin. The employee provided evidence that his supervisor stated in a demeaning tone that he could not understand the employee's accent and did "not want to hire any more foreigners."

Provide good service

Employers should re-emphasize the importance of providing hospitable service to every customer in order to avoid potential discrimination claims by disgruntled patrons who believe they were "mistreated" because of their religion, ethnicity or national origin. Employers might consider creating a (800) number for patrons to call if they feel they have been mistreated.

While nothing can completely insulate an employer from a lawsuit, those measures will reduce the likelihood of having such a claim filed and will increase the employer's ability to defend against such a claim successfully.

Kenneth N. Winkler Esq., is an attorney with the law firm of Elarbee, Thompson & Trapnell, LLP, in Atlanta. He is a member of the firm Hospitality and Service Indus fries Group, which provides legal counsel to employers in the hospitality industry.

COPYRIGHT 2001 Reproduced with permission of the copyright holder. Further reproduction or distribution is prohibited without permission.
COPYRIGHT 2001 Gale Group