Document Type

Article

Publication Year

2009

Journal Title

New York City Law Review

Abstract

Notwithstanding the passage of eight years, "post-9/11 discrimination" persists, most profoundly in the workplace. While the volume of cases has seemingly decreased, negative stereotypes of Muslims and Arabs have become entrenched into popular culture and consequently more prevalent in the workplace. One need only recall the 2008 presidential elections where allegations that Barack Obama was a Muslim or Arab were in effect racial slurs and ethnic epithets. Months after Barack Obama's inauguration, anti-Muslim sentiment continues in the form of the growing "Birther" movement challenging the validity of President Obama's Hawaiian birth certificate, and ultimately the legitimacy of his presidency, on grounds that he is a closeted Muslim born in a Muslim country. Despite the spuriousness of the allegations, the popularity of the Birther movement suggests that suspicion and distrust of Muslims in America will continue for years to come.

Litigation of civil rights employment claims, both under Title VII and 42 U.S.C. § 1981 et seq, offers an effective means of countering entrenched bias in the workplace. In addition to providing remedies to plaintiffs harmed by employment discrimination, such cases offer a powerful disincentive to employers who permit their workplace to become infested with insidious stereotypes against Muslims, Arabs, or South Asians.

Accordingly, this Article provides the legal framework for pursuing such claims. Part I lays out the theoretical backdrop of how immigrants and racial minorities have historically been targeted as a result of a misguided Eurocentric definition of "American." Though Arabs, Muslims, and South Asians have historically experienced the adverse effects of such narrow and exclusive definitions of citizenship, the terrorist attacks directed long-standing nativist bias to these groups and permanently racialized them. Part II discusses how governmental racial profiling and targeted law enforcement action legitimizes private bias that is ultimately manifested as workplace harassment. To highlight the misconceptions and fallacies perpetuated by the racial slurs, Part III offers a general introduction to the Arab, Muslim, Middle Eastern, Sikh, and South Asian communities in the United States. Part IV discusses the availability of national origin and ethnic origin as a basis of liability under Title VII. Part V explains the theories of liability under which a plaintiff may pursue a hostile work environment claim on the basis of national origin or ethnic origin. Included is an analysis of the myriad of cases filed since September 11, 2001 that involve allegations of discrimination against Arabs, Muslims, Middle Easterners, Sikhs, or South Asians. Finally, the Article concludes by arguing that national or ethnic origin harassment expressed through accusations of being a terrorist, ethnic slurs about an employee's Arab heritage, and allegations of condoning violence based on a profession of the Islamic faith are all results of the racialization of Arabs, Muslims, and South Asians as the "terrorist other" and the entrenchment of stereotypes that have surpassed being merely backlash.

First Page

33

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