Employers, Don’t Throw Away Your Shot To Prevent And Remedy Antisemitism

As most have heard by now, the National Basketball Association (NBA) and the Brooklyn Nets suspended star player Kyrie Irving for espousing, and then not disavowing, antisemitism.

Irving promoted a well-known antisemitic documentary on Twitter. Unlike when I tweet about some case or new workplace law, when Irving tweets, more than 4.6 million people may listen.

Irving’s employer, the Nets, ordered him to apologize for promoting the film, he refused, and the Nets suspended Irving without pay. The Net explained,

 [S]uch failure to disavow antisemitism when given a clear opportunity to do so is deeply disturbing, is against the values of our organization, and constitutes conduct detrimental to the team.

https://www.nba.com/nets/news/statement-from-the-brooklyn-nets-11-03-2022

Why, you may think? It’s just a movie.

Not so much. I haven’t seen the movie, but according to The Wall Street Journal, the core beliefs of the documentary, “Hebrews to Negroes,” include portraying the Holocaust and murder of six million Jews as one of the “major falsehoods” propagated by Jews to “protect their status and power.” 

Read that again.

The danger of a public figure’s public promotion of such antisemitism cannot be understated. It normalizes antisemitism and gives tacit permission for others to do the same.

I can assure you, the Holocaust is no falsehood.

My spouse’s grandfather lost his wife and child in the Holocaust, but others have not. And others have not or may not have studied that era of human depravity.

So, Irving’s post to millions of people who may not know the history of antisemitism and the Holocaust carries the added danger of normalizing and popularizing antisemitism.

Irving’s Employer Suspended Him

In the face of antisemitism, employers must act promptly to stop and abate the effects of the discrimination. Employers are less likely to be found liable for an employee’s discriminatory conduct if they respond reasonably and promptly to complaints.

Did the Nets do that? Maybe. The Washington Post reported here that “[t]he Nets had punted on leadership all week.” First, the Nets’ owner did not suspend or fine Irving once he learned about the Twitter post. Then, team management did nothing about the issue for several days.

Irving finally apologized late last week when he learned he was suspended for five games. It reminded me of the time Harvey Weinstein apologized once he realized he was in trouble — too little, too late.

Apparently, the NBA has taken action in the past against players who advance or promote antisemitic beliefs or other beliefs based on harmful stereotypes:

  1. Last March, the NBA fined a Miami Heat center player $50,000 and suspended him for a week after he said an antisemitic slur online;
  2. In 2011, the NBA fined one player $100,000 and another player $40,000 this year for using anti-gay slurs;
  3. In 2014, the NBA compelled the Los Angeles Clippers owner to sell the team and suspended the Phoenix Suns owner this year after both owners used the N-word multiple times.

What Might Antisemitism In The Workplace Look Like?

Federal law, Title VII of the Civil Rights Act of 1964, prohibits discrimination, harassment, and retaliation based on religion. But being Jewish may implicate other protected classes too.

As the federal agency that enforces anti-discrimination laws like Title VII, the Equal Employment Opportunity Commission (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 may involve more than religion and the observance of religious customs or the need for religion accommodations.

Photo by J. Amill Santiago on Unsplash

In this case in Louisiana, the plaintiff, a Jewish job applicant, based his discrimination and harassment claim on race. There, a federal judge noted that courts have “regularly held that antisemitic 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.”

Secular Jewish employees may challenge antisemitic discrimination or harassment based on an employer’s disparate treatment. For example, an employer that pays a Jewish worker less because the person is Jewish or fails to promote another employee because the person is Jewish discriminates against that person.

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 antisemitic 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 About Antisemitic Rhetoric At Work?

  • Be An Upstander, Not a Bystander when witnessing antisemitism. Bystander intervention interrupts casual or accepted antisemitism. Encourage reporting, and prohibit retaliation.
  • Leaders set the workplace culture. When anti-discrimination measures and a refusal to tolerate harassment comes from leadership, it demonstrates commitment to employees from the C-Suite to the mailroom to maintain a culture of respect for all. It says, “we’re serious here” and, likely, a workplace with an organizational culture that results in less discrimination (based on race, religion, national origin, sex, or otherwise) and harassment.
  • Clear Guidance. Employers should provide clear guidance about inappropriate statements and posts on social media. Ensure anti-harassment and anti-discrimination policies include and address antisemitism.
  • Education and Training. Ensure your workplace is educated about antisemitism and that it is unequivocally unacceptable. Train managers to take complaints about antisemitism seriously.
  • Investigate any complaints about antisemitism promptly. If you’re not sure what to do, outsource the investigation to an outside person, like a lawyer.
  • Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating an employee or customer that spouts antisemitic statements or slurs. Have clear standards for what type of conduct merits discipline and the types of discipline and enforce it—hold people accountable for misconduct.

Doing nothing about antisemitism in the workplace 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.