Muslim Employment Discrimination: A Legal Examination
Some Needed Perspective
Sometimes in the poisonous air of the political season, we have to pause for some perspective. This hit me recently as I continued my research into the history of Islam in the U.S. courts, when I noticed the remarkable number of federal judicial opinions over the last ten years involving aliens who fear being deported United States because of what will happen to them at the hands of Muslims in their home countries. The situation is not reversed. With the exception of individual Americans who have been indicted by grand juries here, there are no overseas American refugee populations. That fact alone should give comfort to those who get tired of hearing the U.S. criticized by the Muslim world. We have plenty of their nationals here, and they have no interest in going home.
Muslim asylum claims are proliferating in our courts. They represent a large portion of American federal court decisions which mention Islam. Some asylum claimants are Muslims who hail from countries governed by Islamic law, in which case they fear the government. Some come from secular countries that cannot control Muslim thugs who target neighbors they deem insufficiently Islamic. Either way, there are plenty of Muslims here who fear their fellow Muslims to such an extent that they throw themselves on the mercy of our courts to avoid being sent home. Their own countries are, in international parlance, "failed states." These individuals would be happy never to go "home" again.
This cannot be said of the United States. We have far more people who want to be here than want to leave. There has been quite a bit written about our immigration problem. Whatever one says about how we treat immigrants here, asylum claimants are assured of being heard. Based on changes in our legal system, the U.S. offers individualized review their asylum claims by our most prestigious courts, the U.S. Courts of Appeal, a system of review that probably goes beyond our international obligations. Those who question whether the U.S. is a force of good in the world should keep that in mind.
Part of what defines a failed state that lead her diaspora into claiming asylum status is the inability to stamp out private discrimination. We still have private discrimination here, but one cannot credibly say that people have to suffer it without legal recourse. Our anti-discrimination laws are one of the great legacies of the last 40 years.
Since the 1960s, employees within the U.S. enjoy protection from workplace discrimination by rigorous federal anti-discrimination laws. We have a federal agency, the Equal Employment Opportunity Commission (EEOC), which receives and investigates complaints of discrimination by anyone within the U.S. If they EEOC finds discrimination, it can sue the offending employer on behalf of the affected employees. If not, it gives employees the right to sue themselves. Employment discrimination cases are typically heard in federal court, where the judges are good and the dockets efficient. Meanwhile, several cities and states have bolstered this regime with remedies that go beyond the federal nationwide minimum.
How have these systems worked for Muslim employees, many of whom come from countries where discrimination, if not institutionalized, is at least a fact of life? That is a question I set out to answer, through a systematic review of those cases in which Muslim employees here claim that they have been discriminated against in their jobs. I wanted to see how Muslim employment cases have evolved with the growth of Islamic terrorism in the United States, and as the volume of judicial opinion involving Muslim-related asylum claims has increased.
Because what I discovered is bound to generate controversy, I want to make it as easy as possible for other legal researchers to replicate my results. Accordingly, I have posted several lists so I can explain my findings, and I encourage anyone who thinks my facts are mistaken to let me know where I have it wrong.
The Universe of Muslim Discrimination Cases
In terms of employment litigation, I found 329 American judicial opinions (federal and state) involving Muslim employees claiming they suffered discrimination in the workplace. These opinions are both published and unpublished, and they all are available on Westlaw. They are listed in chronological order (by the date of the court opinion) at Appendix A.
The first of these opinions was issued in 1974, and involved an EEOC lawsuit on behalf of a group of Black Muslims against a Georgia employer known as Rollins Inc EEOC v. Rollins, Inc., Not Reported in F. Supp., 1974 WL 208, 8 Fair Empl.Prac.Cas. (BNA) 492, 8 Empl. Prac. Dec. P 9557 (N.D. Ga., 1974) The last one issued on August 27, 2007, an involved a gay African-American in New York who claimed he was fired because his hospital employer thought he was Muslim (a claim which, if proved, would entitled him to redress under U.S. law). Lewis v. North General Hosp., 2007 WL 2398077 (S.D.N.Y. 2007). While Black Muslims (members of the Nation of Islam and its ilk) are included in this list, the majority of cases involve plaintiffs who were Muslims from the Middle East, especially in recent years.
Of the cases listed in Appendix A, the majority of these opinions (305) are federal, while only 24 are in state courts. In terms of their geographic source, courts in New York, California, Illinois, Texas and Washington D.C. were most common jurisdictions issuing Muslim employment decisions. In fact, the total cases from those five jurisdictions constitute about one-half of the total.
The most remarkable thing about this list is the exponential growth of Muslim employment discrimination cases. Between the Rollins case in 1974 and the end of 1979, there were a total of six (6) Muslim employment discrimination opinions (approximately one per year.) In the 1980s, there were 17 (a little over one per year).
The 1990s is when the acceleration started. Here is a graph depicting the number of Muslim employment discrimination opinions issuing during that decade:
Then, for the first six years of the 2000s, the volume of opinions looked like this:
Drawn to scale, the depiction of the growth in Muslim employment discrimination opinions over since 1990 looks like this:
The year 2007, which is not included on the graphs, is on track to have the largest number of Muslim discrimination opinions in history. As of this writing, there have been 42 opinions, and there is still one-third of the year left. At this rate, 2007 will exceed 2006, which set an all-time high (57 rulings).
My observations are confirmed by figures from the EEOC, which is where employment discriminations claimants must first go when asserting claims. In a recent Forbes Magazine article concerning some recent labor unrest in Nebraska arising from the employer’s refusal to give its unionized Somalian employees prayer breaks, an EEOC representative said that religious discrimination complaints by Muslims have doubled in the last ten years, from 221 in 1996 to 594 in 2006.
Armed with the universe of all Muslim-plaintiff employment discrimination cases, I turned to carving these cases to determine other trends. I gleaned four categories and I generated a separate list for each one: (1) claims that were rejected by the court on the merits, under the applicable laws (Appendix B) (2) claims that were rejected by courts based on procedural technicalities (Appendix C), (3) claims where courts did not reach the merits or issued opinions in which the discrimination claims remained pending (Appendix D), and (4) opinions in which court found redressable anti-Muslim employment discrimination (Appendix E).
Some of the cases in the universe of Muslim plaintiff employment discrimination (Appendix A) generated more than one judicial opinion, which is what would happen when a court issues of scheduling or discovery opinion and then later rules on a motion to dismiss. In this situation, when I categorized those cases and placed them on the appropriate list, I depended on the most recent opinion and listed the older immediately under that citation. This way, the entire history of each case can be seen in single entry on whatever list the most recent case falls. (I did not include on any of the lists summary affirmances which do not contain any additional facts.) On each of these lists, I included a one-line description of the claim – the type of Muslim plaintiff, nature of case, and job description, to the extent this information was contained in the opinion.)
This taxonomy allows me to offer several interpretations of the data.
Muslim Employment Discrimination Claims Are Generally Losers
We saw from Appendix A that the volume of litigation initiated by Muslim employees who feel they were discriminated against on the basis of their religion is growing. Between the 1970s and the 2000s, the increase is about five-fold. To put this in perspective, the number of Muslim employment discrimination opinions that used to be decided in an entire decade is now issued in an average month. What accounts for such increase?
A portion of the growth is explained by changes in the available legal remedies. Prior to 1987, although religious discrimination was recognized by the courts, it was unclear whether Arabs could claim racial discrimination in the United States, based on the theory that Arabs were Caucasian and therefore not a racial minority. On May 18, 1987, in one of the cases listed in Appendix A, the Supreme Court established that Arabs were an ethnic minority for purposes of our federal anti-discrimination laws. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, U.S.Pa.,1987.
The acceleration of Muslim employment discrimination claims followed the first World Trade Center attacks in 1993. Around this time, Americans were being killed in Israel in acts of terror perpetrated by the Palestinian rejectionist groups like Hamas and the Palestinian Islamic Jihad, with such incidents receiving heightened attention in the U.S. media. Through the end of the decade, there were several more Islamic attacks on U.S. interests abroad, and al Qaida began to be an entity known to many Americans. Then came 9/11.
Why would Islamic terrorist attacks result in more claims of employment discrimination against Muslims? There are a number of possible theories, which neatly fall along a continuum of two diametrically opposed views.
One on end is what I will refer to as the "Innocent Muslim Bystander" theory: Islamic terrorist attacks against the U.S. increase discrimination against innocent Muslim employees here, who are distrusted in the workplace and wrongly punished for of the actions of a few radicals who claim to act in the name of their religion. This theory is the narrative advanced by such groups as the Council for American Islamic Relations (CAIR) and other Muslim civil rights organization.
On the other end of the continuum is what I will call the "Political Islam" theory, which is the narrative pushed by a number of prominent commentators: Muslims in the U.S. saw the steady increase in attacks that culminated in 9/11 as an opportunity to press their advantage and achieve greater Islamicization of American workplaces, even while disavowing violent jihad, and their employment discrimination push is one aspect of such effort. I chose the name "Political Islam" because it reflects the use of discrimination laws as part of power politics. (There is arguably an even more extreme view on this end of the continuum - that Muslim plaintiffs actually worked for terrorist groups and their lawsuits were part of a worldwide, multi-faceted plan to conquer the U.S. – however I do not consider that theory here.)
I believe the question of which of these two competing views is more valid is easily answered by examining one factor: whether the growth in Muslim-initiated employment discrimination claims since the 1990s has resulted in a concomitant increase in actual judicial findings of religious discrimination. After all, either the "Innocent Muslim Bystander" or the "Political Islam" theory would explain the growth in the number of claims, while only the former would explain a growth in the rate of successful claims (measured by the percentage of successful claims to total claims.)
If the "Innocent Muslim Bystander" theory is correct, there would an increase both in the number of claims and their rate of success. In other words, greater discrimination over time would mean more claims and a higher rate of success in later years. If the "Political Islam" were correct, there would be more claims but fewer confirmed findings of anti-Muslim discrimination. If the rate of success remained constant as the number of claims grows, it would suggest that the increase might be attributable to the 1987 Supreme Court ruling plus demographic patterns (like a raw increase in Muslim employees in the American workplace).
Clearly, there has been an increase in Muslim discrimination claims. The real question is this: has there been an increase in rate of success?
The answer is a resounding no. Instead, the number successful Muslim employee discrimination lawsuits has remained constant, which is to say de minimis. There are opinions which indicate that Muslim employees have succeeded in showing redressable religious employment discrimination in a total of only 12 cases in American legal history (Appendix E). In contrast, a total of 196 claims have been dismissed by the courts as lacking in legal merit (180 cases on Appendix B plus16 cases on Appendix C). Judged this way, the success rate for Muslim discrimination claims as the total number of claims increased has decreased considerably.
I should note that I was very generous in classifying a case as successful for inclusion in Appendix E. Of the 12 cases listed there, the one involved claims in which Muslim plaintiffs joined their Jewish and Catholic colleagues in more generalized claims of religious freedom by military employees (Rigdon v. Perry, 962 F. Supp. 150 (D.D.C. 1997), and another case involved a Muslim plaintiff who prevailed on the merits but was denied any award, including attorney fees she would be entitled to as the "prevailing party" (Azimi v. Jordan's Meats, Inc., 473 F.Supp.2d 101, 2007 WL 295257 (D. Me. 2007). Another one is not even a discrimination cause but rather a successful effort to require the government to certify some Muslim aliens as employable so they can avoid deportation, but I nonetheless included it. Yasin v. Bartlett, Slip Copy, 2004 WL 3826817 (S.D. Tex.2004). Another involved an injured employee who was denied unemployment benefits because he refused medical treatment for on-the-job injuries based on his religion. Nasser v. CSX Lines, LLC, 191 F.Supp.2d 307 (E.D.N.Y. 2002). In other words, the cases I treated as affirmative findings of discrimination, I have been very inclusive. The total number of cases in Appendix E easily could have been fewer.
One of these cases on Appendix E shows how Muslim plaintiffs could succeed - E.E.O.C. v. Alamo Rent-A-Car LLC, 432 F.Supp.2d 1006 (D. Ariz. 2006) – in which no genuine issues of fact existed, and the court found for the Muslim employee as a matter of law, through the employee’s summary judgment motion. Clearly, it cannot be claimed the summary judgment process is stacked in favor of employer/defendants.
I expect that the fault to be found in my conclusions is the premise that judges are fair and give Muslim employees the benefit of the doubt after 9/11; surely their rulings were racist or reflected the Islamophobic tenor of the times. It is not a valid counter-argument if one accepts that judges decide fairly on the facts and application of law in employment discrimination cases that have been proven and upheld overwhelmingly. Such an argument is nihilistic, leading nowhere except to the concept that all American institutions are corrupt. That’s a sure way of ending an interesting discussion.
Not going quite so far, one could interpret these findings to suggest that our employment discrimination laws are inadequate - that employees with valid complaints are rejected by the courts. However, we see no mass movement to reform the laws based on this argument. .
What appears to have occurred is that Islamic terrorism and meritless Muslim employment discrimination claim have each grown hand in hand. This tends to support the Political Islam theory.
I would also note that my findings do not imply that many of the Muslim discrimination claims listed on Appendix B utterly lacked merit. Indeed, some of them (three cases) were deemed sufficiently meritorious that the EEOC agreed to bring the case on behalf of the aggrieved Muslim employees. Still, these cases failed, at least in the sense that that there is no court ruling finding that discrimination indeed occurred. That is what really matters under my methodology.
The Hint of Discrimination
One qualification for my findings involves the fact that my methodology is a snap shot of cases that have hit the American courts. If courts reconsidered their prior decisions or were overruled by higher courts – something that could happen next week - the size of my lists would change. Courts can be reversed, and the fact that a Muslim discrimination case is dismissed does not mean that it cannot be reinstated later. Similarly, cases where a court refuses to dismiss a claim one day can be dismissed in the future. The dynamic brings into my taxonomy a category that I have not discussed - Muslim discrimination cases in which court denied defendant’s motion to dismiss. In this case, a court has examined the complaint, treated the allegations as true, and found that they qualify as a legal claim eligible to continue.
Of the total number of Muslim employment discrimination cases in American history (284 controversies, consisting of the 329-case universe, minus the cases that were subject to more than one opinion), a total of 196 have been dismissed. This figure, minus the cases that have resulted in affirmed findings in favor of the Muslim employees (12 cases, Appendix E), result in cases in which court have considered but refused to dismiss the religious discrimination cases when faced with the opportunity to do so (76 cases, Appendix D). In these cases, the relevant court found that there was a sufficient hint of religious discrimination – combined with proper pleadings - to permit the case to proceed.
These cases, according to the court opinions, remain pending, and I have not gone to any extraneous sources to find what happened to them Some of them, however, are old, which means that they have probably been resolved somehow either because the employee walked away for the matter or because the parties settled. The problem is that judicial opinions do not tell us what ultimately happened, and that was my canvass.
Let’s assume that all of these "pending" cases listed on Appendix D resulted in a settlement for the Muslim employee, which is a victory of sorts. Even if all of these cases are assumed to have led to this result, the total number of successful Muslim employee would be 88 cases (76 from Appendix D plus 12 from Appendix E). That would mean that, judging from available judicial opinions, more than two-thirds (196 cases divided by 284) of all Muslim employment cases in American history are legal losers. It would also mean that that the success rate has still gone down, unless a large number of dismissed cases (Appendix B) are ultimately reinstated.
Is such assumption realistic? It is possible that claims that are not subject to dismissal are eventually successful? This would result in all cases migrating from Appendix D to Appendix C, hardly a realistic scenario but theoretically possible. Meanwhile, cases that were dismissed by the court may eventually be reconsidered and be reinstated (resulting in a migration from Appendix B to Appendix C). What does history show about the prospects for these scenarios?
To answer that question, I examined how many of the case in my universe migrated from one list to another during their pendency. The cases are the subject of multiple judicial opinions (Appendix F). Of the Muslim employment discrimination opinions that have been issued in American history up to September 1, 2007, we see that cases are far more likely to go from bad to worse. There were 14 cases that survived a court opinion to be dismissed by the courts later, and one in which a finding of discrimination was reversed . On the other hand, there are only four (4) cases that have gone in the opposite direction. In other words, "pending" Muslim discrimination cases are more likely to be eventually dismissed than dismissed cases are likely to be reinstated.
My interpretation is that the likelihood of success in a Muslim employment discrimination case – filed today at an increasing rate - is something far less than 33 percent. After all, a 33 percent success rate is what would result if all of the pending cases (Appendix D) lead to success for the Muslim employee plaintiffs, which would require a remarkable break from the patterns of the past.
To illustrate the increase in the number of cases without a corresponding increase the rate of success, here is a chart depicting the number of opinions for three types of cases: (1) those dismissed (Appendix B and Appendix C), (2) those not dismissed (Appendix D), and (3) those finding discrimination (Appendix E), between 1999 (when the acceleration in Muslim discrimination cases started) through 2006:
Some Possible Explanations
Can we posit an explanation for this continuing increase in Muslim employment discrimination cases, despite the decreasing success rate? One answer might strike some as conspiracy-minded: perhaps Muslims in the U.S. are trying to insinuate themselves into our vital institutions, and resort to aggressive litigation when their plans are frustrated in individuals cases. This theory is part of the "growing Islamicization" theory of American life. It would not require a single conspiracy, just an ethnic community-wide effort, spread through the mosques and the community centers, to make America more Islamic. Are there any indications that this is the explanation?
One thing that can be gleaned from the descriptions of the cases listed in Appendices B through E is that Muslim employment discrimination claims are increasingly being advanced by employees in the white-collar professions. The cases involve Muslim employees fired from jobs as university professors, doctors, engineers, and government employees, including some Muslim employees in national defense agencies. There were aggrieved Muslim employees who treat public water supplies. Prison guards. Hazardous waste drivers. Is the Muslim Brotherhood putting them up to it? While the Muslim discrimination claimants come from a broad ethnic origin that would belie a master plan, look at the number of claims in recent years that involve Egyptian Muslims. One wonders ….
Of course, as Richard Nixon would say, I am not claiming that(even though some will claim I just did.) However, I do believe that the growth of Muslim discrimination claims without the corresponding increased rate of success evidences Muslims claiming victim status at an alarming rate. Their sense of indignation may have increased after 9/11. I think the numbers buttress the views of people arguing that Muslim-American civil rights organizations like CAIR should be more aggressively questioned and scrutinized about their methods and goals. The same goes for their lawyers. I am claiming that.
A Final Thought
I am brought back to my original observation about the proliferation of Muslim asylum cases in our courts. The United States, it can be said, is not a failed state, while many countries whose nationals reside with us certainly are. For this issue, it matters less that Muslim employees rarely win their discrimination cases than the fact that they are heard. We provide individualized review of their complaint over how they are treated by our most prestigious courts. This makes us good. It makes us great. It is also more than individuals would get in countries governed according the Islamic law.
For some additional perspective, given how I have described our anti-discrimination laws, how would we respond if an American employer decided that henceforth, because of the eccentric religious beliefs of its main client – a sovereign state – the company would require all its employees working in the client country to convert to the client’s religion as a condition of continuing employment? Surely, that employer would be called to task, and told to shape up. That situation would be a plaintiff lawyer’s dream; Punitive damages would be a distinct possibility.
Or would it? Believe it or not, that is not what happened. It’s a real case. The American employer was Dynalectron Corp., duly incorporated in the State of Delaware. The eccentric client was Saudi Arabia. It seems that our great ally in the Persian Gulf adheres to the view that non-Muslims who enter Mecca, which it controls, are punishable by death. Not eager to offend its Saudi client, Dynalectron announced that all pilots hired to fly to Mecca must convert to Islam. The company even offered Muslim indoctrination classes, to make its employees’ religious transition smoother. For helicopter pilot Wade Kern, it was just too much. He started the conversion process and then cried foul, and sued Dynalectron for religious discrimination.
Kern died before his case was resolved, which was subsequently pursued by his widow. A federal judge in Texas ruled that Dynalectron had succeeded in establishing that being a Muslim was a bona fide occupational qualification for its employees. Kern v. Dynalectron Corp. 577 F.Supp. 1196 (D.C. Tex. 1983).
In addition, our employment laws do not protect American employees of foreign corporations. Boureslan v. Aramco, Arabian American Oil Co., 892 F.2d 1271, 1990 WL 2531, 51 Fair Empl.Prac.Cas. (BNA) 1668, 52 Empl. Prac. Dec. P 39,605, 58 USLW 2468 (5th Cir. 1990). Why? The courts held that Congress has not expressed a clear intent to give extraterritorial application to our anti-discrimination laws, even though we could under customary international law principles. Dynalectron chose to indulge the odd belief that non-Muslims who enter the most holy site of Islam deserve death, as if this were dictated by nature.
When Kern was announced, there may have been celebrations in the office of multinational companies, for there was another neddlesome American labor law they did not have to worry about. The result, however, is strange to me. How can we be so protective of the religious sensibilities of people located here, yet so dismissive of the same sensibilities of employees of American entities located in the Muslim world? This is what we would have if we adopted Islamic law. If Saudi Arabia is one of the few Islamic countries that is not a failed state, is it a country we really want to emulate in terms of how they view infidels?
As I said, sometimes we need to pause for some perspective.