One major difference between the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 is that the ADA explicitly protects employees who are discriminated against because of an employer’s perception that they are disabled, although in reality they may not be. Title VII employment discrimination, on the other hand, does not recognize the concept of an employer discriminating against an employee based on that employer’s perception that an employee is a member of a protected class. Accordingly, a Title VII plaintiff historically has a higher burden of proof in establishing their prima facie case. Traditionally, although the same act of “discrimination” would not be the basis for an employment discrimination cause of action where the worker is not a member of a protected class, recent case law has demonstrated a trend towards expanding protections under Title VII to include an employer’s perception that an employee is a member of a protected class.
Two recent cases in particular are illustrative of this trend in employment discrimination. In Kallabat v. Michigan Bell Telephone Co., a federal judge ordered that a Michigan man’s case on perceived religious discrimination go forward. Mr. Basil Kallabat, a dark-skinned man of Iraqi descent, and a self-proclaimed non-Muslim, suffered an adverse employment action while working as a customer service representative. Even though a Title VII claim based on his color, gender, or national origin would be unimpeachable, Mr. Kallabat’s claim centered on an element of perceived religion. The plaintiff claimed that when he wore a hat backwards and a co-worker said it looked like a “topi” (a skullcap worn by Muslim men for religious reasons) and other workers starting laughing at Plaintiff as a result. Further, on another occasion, there was graffiti etched into the door of a bathroom stall of one of Defendant’s offices depicting two buildings similar to the Twin Towers with a plane hitting one of them and a caption that stated that the plaintiff is learning how to fly. After learning of the graffiti, the Area Manager said that Plaintiff was oversensitive, emotional, and unable to take the joke during a crew meeting. The Court denied the defendant’s motion for summary judgment, holding that a reasonable jury could find that the incidents are evidence of discrimination based on the perception that Plaintiff was a Muslim. Similarly, in Arsham v. Mayor & City Council of Baltimore, an Iranian engineer’s perceived Title VII claim survived summary judgment on the basis that her supervisor’s mistaken belief that she was Indian, and not Iranian, should not save the employer from Title VII liability.
With this potentially looming expansion of workplace religious employment discrimination protection, it is imperative that both management and employees know their respective rights as they relate to federal, state, and municipal ordinances. The Gilbert Law Group can help you navigate this fast changing legal arena.
Schedule a consultation by calling (631) 630-0100.
Contributed by Michael B. Engle