Executive Summary: The unprecedented increase in antisemitism in the workplace may subject employers to liability under federal and state laws prohibiting discrimination on the basis of religion, race, national origin and ethnicity. This Alert addresses some steps employers can take to ensure their workplaces are free from discrimination and antisemitism and are in compliance with state and federal laws. Doing so not only protects employers in the case of discrimination litigation but also ensures a safe and productive work environment for all employees, including Jewish employees.
Background: Jewish people are currently facing unprecedented antisemitism following the attack on Israel by Hamas on October 7, 2023, and Israel’s declaration of war. Antisemitism is the hatred of Jewish people for no other reason except that they are Jewish. It constitutes both religious and race discrimination, and includes stereotypical tropes, scapegoating, anti-Zionism, using symbols associated with antisemitism (such as a Swastika), and Holocaust denial. As these authors previously reported, in November 2022, ResumeBuilder.com conducted a survey, showing just how much employers consider Judaism in making employment decisions. In fact, the ADL has noted that at least 85% of adults – America’s workforce – believes at least one antisemitic trope to be true. Although before October 7th antisemitism was already at an all-time national high, the Anti-Defamation League estimates that antisemitic incidents, including in the workplace, have increased nearly 400% since then.
Federal Agency Guidance: Earlier this year, in conjunction with the release of the Biden Administration’s National Strategy to Counter Antisemitism, the Equal Employment Opportunity Commission (“EEOC”) issued renewed guidance to employers on antisemitism, addressing how employment discrimination based on religion, including antisemitism, violates Title VII of the 1964 Civil Rights Act. More recently, the White House published a “Fact Sheet: Biden-Harris Administration Takes Landmark Step to Counter Antisemitism,” https://www.whitehouse.gov/briefing-room/statements-releases/2023/09/28/fact-sheet-biden-harris-administration-takes-landmark-step-to-counter-antisemitism/, which stated that as part of President Biden’s National Strategy to Counter Antisemitism, eight federal agencies clarified, for the first time in writing, that Title VI of the 1964 Civil Rights Act – which prohibits race discrimination in federally funded programs – prohibits “certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities. These wide-ranging protections provide important tools to curb discrimination based on shared ancestry or ethnic characteristics and to better protect the civil rights of all Americans.” As these various federal agencies have recognized, discrimination against Jewish employees can be based on religion, race, ethnicity and/or national origin, all of which violate federal law. The Brandeis Center for Human Rights Under Law has published “Anti-semitism and Jewish Identity in the Workplace,” which provides a helpful discussion of the ways in which Jewish employees may experience workplace discrimination.
Actions Employers Can Take: Considering the heightened focus of federal agencies on this issue, employers should be aware of their responsibilities under Title VII and state and local laws that prohibit religious and race discrimination in the workplace, including antisemitism. As with other types of discrimination and harassment, employers who permit antisemitism in the workplace or fail to have policies and procedures in place to ensure they are aware of antisemitic activity and can act promptly to eradicate it likely will be unable to establish an adequate defense to charges of discrimination in federal or state court litigation. The EEOC guidance bears reexamination now for employers to ensure workplaces remain free from discriminatory animus and safe for all employees, including Jewish employees.
First, the EEOC makes clear that employers are prohibited from considering an employee’s or applicant’s Judaism in making employment decisions. This includes all aspects of employment – hiring, firing, layoffs, pay, promotions, transfers, job assignments, training, benefits and all other terms and conditions of employment. Employers should review their DEI initiatives and make sure they clearly address all marginalized groups, including Jewish employees, and state that no hate will be tolerated.
Second, employers must reasonably accommodate their Jewish employees’ religious beliefs and practices. For example, if an employee observes Shabbat, which begins at sundown on Friday and during which all work and driving is prohibited, an employer may need to modify its normal work hours to ensure the employee can be home before sundown. For employers who have dress and grooming codes, accommodations may need to be made for a Jewish employees’ dress code, for men such a wearing a yarmulke (skull cap), tzitzit (knotted tassels), peyes (long curled sideburns) and beards, and for women wearing dresses that cover the knees and wigs or other hair coverings. Nor may an employer segregate Jewish employees because of their dress or on any other basis, including customer preference (which is one of the most common examples). Additionally, employers should remember that the United States Supreme Court has redefined the “undue burden” standard in religious accommodation cases. In Groff v. DeJoy, the Court held that to deny a religious accommodation as an “undue burden” an employer must show that the accommodation would “result in substantial increased costs in relation to the conduct of the business.” This is a considerably higher burden than the previous de minimis standard.
Third, just like with any other protected class, harassing an employee because he/she/they is Jewish is prohibited by Title VII. Examples include using antisemitic tropes and stereotypes, equating all Jewish people to being responsible for the current situation in the Middle East or making fun of the way Jewish people dress and eat. For example, the United States Government Publishing Office was recently sued for hostile work environment discrimination under Title VII by employees who claimed their supervisor subjected them to various types of discrimination including Nazi propaganda, Nazi salutes, white supremacy, racist statements and various forms of harassment. To avoid liability for such complaints, employers should ensure that EEO and antiharassment policies and procedures specifically ban antisemitism in the workplace. Provide real world examples of antisemitism (the obvious and more subtle) to educate employees. Ensure that supervisors and managers are trained to recognize antisemitism and address it when it occurs in accordance with complaint investigation practices.
Discipline employees engaging in antisemitism appropriately, and have resources, such as an Employee Assistance Program or Employee Resource Group, available to affected employees.
Finally, as always, ensure that employees know that retaliation is prohibited. The EEOC specifies that employees who request religious accommodation are protected from retaliation for doing so, as is an employee who uses an employer’s complaint procedure to report antisemitism.