STICKS AND STONES, THE WORDS THAT HURT: ENTRENCHED STEREOTYPES EIGHT YEARS AFTER 9/11

In the realm of adults, name-calling is often a fact of life that one simply brushes off like water rolls off a duck’s back. At some point, however, racial slurs and ethnic epithets hurled at employees constitute actionable discrimination rooted in palpable and entrenched stereotypes. In the case of Muslims, Arabs, and South Asians, the September 11, 2001 terrorist attacks not only caused an upsurge in hatred, violence, and discrimination, but also entrenched preexisting negative stereotypes. Targeted law enforcement efforts and media images stereotyping dark-skinned, bearded males with Arabic-sounding names as representing the primary threat to the national security of the United States contribute to racial, national origin, and religious harassment in the workplace.In the years immediately following the September 11th terrorist attacks, hate crimes and other forms of discrimination against these communities were on the rise at a troubling rate. For the last months of 2001, the FBI reported a 1500% increase in hate crimes against “people of Middle Eastern descent, Muslims, and South Asian Sikhs, who are often mistaken for Muslim” from 28 in 2000 to 481 in 2001. The New York City Police Department received 117 reports of hate crimes against Arab- and Muslim-Americans in the first six months after the attacks, compared to an average of seven hate crime reports per year before 2001. The American-Arab Anti-Discrimination Committee (“ADC”) reported over 700 violent incidents targeting Arab Americans, Muslims, and South Asians or those perceived as such in the first nine weeks following the September 11th terrorist attacks. ADC also documented several murders, 165 violent incidents from January 1, 2002 to October 11, 2002, over eighty cases of illegal and discriminatory removal of passengers from aircrafts based on the passenger’s perceived ethnicity, and over 800 cases of employment discrimination against Arab Americans from September 11, 2001 to October 11, 2002. Similarly, the Council on American-Islamic Relations reported 1717 complaints of discrimination by Muslims in the first six months after September 11.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.