Antisemitism In the Workplace

Antisemitic sentiment continues to rise.

Maybe you saw the swastikas hand-drawn on the columns at Union Station in Washington, DC this morning? No?

Here’s a local news report about the drawings, which were found the day after National Holocaust Remembrance Day.

Last year, the Equal Employment Opportunity Commission (“EEOC), the federal agency that enforces federal anti-discrimination such as Title VII of the Civil Rights Act of 1964, as amended, (“Title VII”), unanimously approved a resolution condemning harassment and discrimination against Jewish people and committed to combat all forms of harassment and discrimination against members of the Jewish Community in the workplace.

The most recent wave of antisemitism prompted the EEOC to host a webinar earlier this January about combatting antisemitism in the workplace. The presentation, complete with slides, remains on the Brandeis Center website.

So how does an HR director/manager or business owner handle the scenario where antisemitism rears its head in the workplace?

Let’s start with Title VII itself. Title VII prohibits discrimination, harassment, and retaliation based on religion. But being Jewish may implicate other protected classes too. As the EEOC explained, depending on the facts, antisemitism could involve discrimination, harassment, or retaliation related to national origin, race, color, or even genetic information.

In other words, antisemitism in the workplace does not have to involve religion and the observance of religious customs or the need for religion accommodations.

Remember this case in Louisiana about discrimination and harassment against a Jewish applicant based on race. There, a federal judge noted that courts have “regularly held that anti-Semitic harassment and discrimination amount to racial discrimination,” and articulated the debate about considering antisemitism a form of racism:

Modern sociologists and anthropologists…debate whether Judaism is a people, a religion, or both. There is no doubt, however, that many people have and continue to view being Jewish as a racial identity. “Jews have been variously perceived as black, Asian, or white, depending on the nature of the perceiver’s bias.” [citation omitted] See also Zahava Moerdler, Racializing Antisemitism: The Development of Racist Antisemitism and Its Current Manifestations 40 Fordham Int’l L.J. 1281, 1282 (2017) (“Antisemitism is not only the expression of religious discrimination, but a form of racism.”).

The EEOC Provided Some Solid Examples.

Indeed, secular Jewish employees can challenge antisemitic discrimination or harassment based on an employer’s disparate treatment of the person. An example is paying a Jewish person less because he person is Jewish, and another example is failing to promote someone because the person is Jewish.

Another type of discrimination is job segregation based on an employee’s religion or national origin. For example, an employer may not assign a Jewish person a position that does not involve client or customer contact because of client/customer preference (actual or perceived).

Examples of harassment based on religion or actual or perceived national origin could be using or ignoring anti-semitic slurs or comments, verbal or written, at work; a swastika either in the workplace or on a video platform (“Zoom-bombing”); trivializing the Holocaust; or, the EEOC noted, circulating conspiracy theories about COVID-19 or vaccines that blame Jews.

What Should Employers Do?

The EEOC provided some ideas, which I’ll summarize along with my thoughts as well:

  • Speak Up. In other words, don’t be a bystander when witnessing anti-semitism. Be an “upstander” and speak out against anti-semitism. Bystander intervention interrupts casual or accepted anti-semitism. As former EEOC Commissioner Chai Feldblum explained about bystander action as a preventative measure:

Bystander intervention training can create a sense of collective responsibility on the part of workers and empower them to be engaged bystanders in preventing harassment.  With leadership support, bystander intervention training could be a game changer in the workplace.

  • Clear Guidance. Employers should always provide clear guidance, of course. Having employees on the same page about workplace expectations is a must. However, combatting anti-semitism requires one step further. The EEOC urges employers to provide clear guidance about inappropriate statements and posts on social media involving social media. Ensure your anti-harassment and anti-discrimination policies address, specifically, anti-semitism.
  • Accommodations. Ensure your policies about religious accommodations are clear and informs employees that the company will engage in an interactive process in order to accommodate employees.
  • Education. I prefer the word “educate” to “training.” Ensure your workplace is educated about anti-semitism and that it is unequivocally unacceptable.

Doing nothing should not be an option.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.