What is antisemitism? Under our anti-harassment law construct, organizations are likely undertaking the wrong analysis if they simply consider it a form of religious harassment.

Judaism is a religion. Employers cannot discriminate against employees based on their religion and they have obligations to provide reasonable accommodations for employees based on their religion. The Supreme Court just broadened the scope of that reasonable accommodation obligation – for all religions – this past June (as we discussed in this blog article).

Jewish People as a Race and Ethnicity

Being Jewish is also a race and a distinct ethnic identity, and antisemitism is a form of racial and ethnic harassment.  In 1987, the Supreme Court held in a pair of decisions, St. Francis Coll. v. Al-Khazraji and Shaare Tefila Congregation v. Cobb that both individuals of Arab and Jewish decent should be considered to be a distinct race or ethnic group for purposes of harassment and discrimination claims under the Reconstruction-era laws, which generally assure equal treatment in making contracts and owning property without regard to race, color or national origin.  More recently, in Bonadona v. Louisiana College (2018), a federal district court in Lousiana recognized that an individual who had converted to Christianity could assert a claim of race discrimination under Title VII, where he alleged that he was not hired because of his “Jewish Blood” as his mother was Jewish.

The United States Department of Education has explained that Title VI, the federal law that prohibits discrimination in education institutions based on race, color or national origin, includes protection of students based on their shared ancestry or ethnic characteristics, or their citizenship or residency in a country with a dominant religion or distinct religious identity.  Guidance from the DoE on Shared Ancestry or Ethnic Characteristics states that the department’s Office for Civil Rights:

can investigate complaints that students were subjected to ethnic or ancestral slurs; harassed for how they look, dress, or speak in ways linked to ethnicity or ancestry (e.g. skin color, religious attire, language spoken); or stereotyped based on perceived shared ancestral or ethnic characteristics. Hindu, Jewish, Muslim, and Sikh students are examples of individuals who may be harassed for being viewed as part of a group that exhibits both ethnic and religious characteristics.

A 2019 Executive Order on Combating Anti-Semitism offers a definition of antisemitism and similarly declares it to be a prohibited form of race, color or national origin discrimination under Title VI.

Millennia of Oppression

Black and Indigenous people have experienced centuries of historic oppression in this country and others. That history seeps into the psyche; the tales of slavery, lynchings, and horrifying abuse are passed down from one generation to the next, as are the tales of mass extermination and forcible relocation and acculturation. The same for other racial and ethnic groups to varying degrees, including Asian, Hispanic and Arab people.

So too for the Jewish people, but with a history of antisemitism that goes back millennia. The Holocaust is one of the most recent and most systematic efforts to eliminate the Jewish people. It was preceded by the pogroms in Eastern Europe, the Spanish Inquisition and expulsion of Jews, the expulsion of Jews from England, the massacres of the Jews during the crusades, the Roman persecutions of Jews, the Assyrian and Babylonian ethnic cleansing of the Jewish people in Israel, enslavement in Egypt, and many other instances of Jews being massacred or expelled from their homes. Most of these tragedies, like Egyptian enslavement, were endured by Jews for hundreds of years.

Time and again since the Roman Empire’s conquest of Israel nearly 2,000 years ago, Jewish people have initially been invited into communities in other lands and have settled there and prospered to varying degrees, only to be turned into scapegoats for the ills of that society and violently attacked and expelled or slaughtered. The scars of that history are long and deep. They color how Jewish people process the incidents of antisemitism — from hostile comments to horrors like the mass shooting five years ago at Tree of Life synagogue in Pittsburgh — that are present and rapidly rising throughout this country, most recently this past week on college campuses.

Absent their religious garb, Jews, like light-skinned Black or Indigenous people, may not be immediately identifiable on the street. But when antisemitism rears its head, even the most assimilated and secular of Jews may find themselves targeted.

Organizations that view Jewish people as simply a religious group may fail to recognize the racism behind antisemitic behavior. They may be dismissive of complaints that do not present as interfering with religious beliefs or practices. But that is the wrong construct. Organizations need to additionally consider reported behaviors through the lens of harassment based on race or ethnicity. Reframed from this perspective, conduct that some might dismiss can be better understood as a form of harassment, in violation of federal, state and local laws, and should be addressed accordingly.

By Tracey I. Levy

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