Reprinted with permission from the July 20, 2023 issue of New York Law Journal. © [2023] ALM Further duplication without permission is prohibited. All rights reserved.

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Authored by Brandeis Center Director of Corporate Initiatives and Senior Counsel Rory Lancman.

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The U.S. National Strategy to Counter Antisemitism recently released by President Joe Biden represents a comprehensive effort to confront and defeat the modern surge of this ancient evil, and it spares no corner of American society from scrutiny or a call to action—not our schools, our houses of worship, or our places of work.

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The workplace has not been immune from the explosion in global antisemitism, in all its malignant forms, and the National Strategy calls out an insidious form of exclusion that is stifling the ability of Jews to confront and mitigate on-the-job antisemitism: across the country, tens of thousands of Jewish employees—whether religiously observant or decidedly secular—at many of America’s largest, most successful, most innovative, and, yes, most enlightened companies, are told that a prime mechanism for combating workplace discrimination and promoting diversity—the identity-based Employee Resource Group (ERG)—isn’t available to Jews.

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Corporate America is exposing itself to significant legal liability under federal and local antidiscrimination laws by refusing to recognize Jewish Employee Resource Groups, and the Biden administration has put the issue on blast by imploring employers to “support Jewish employees by promoting employee resource groups, including for Jewish staff.”

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Employee Resource Groups, sometimes called Affinity Groups, Diversity Network Groups, or similar such names, are company-recognized, sponsored, and supported organizations of employees within a firm based around a particular identifying characteristic, such as race, ethnicity, sex, or sexual orientation, which has traditionally experienced discrimination, unequal treatment, or workplace ostracization.

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Common features of well-functioning ERGs are that they are employee-led and -driven, so that topics of conversation and action come from the employees themselves based on their lived workplace experiences. They connect employees to company leadership, making it easier to collectively communicate broader workplace equity and inclusion concerns to those with the power to do something about them; they allow employees to represent and express themselves on their own terms, both to corporate leadership and to their colleagues; they facilitate corporate charitable giving to organizations that do work in their communities; and they foster networking and career advancement within the company.

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ERGs play a critical role in abating workplace discrimination in its myriad forms in ways that enforcement of individual federal, state, and local antidiscrimination law claims simply cannot do, and that periodic human resources department trainings might impact only statically. ERGs are organic, dynamic, ongoing conversations and efforts to mitigate biases, improve recruitment, expand opportunities for advancement, and help the bottom line.

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That’s why over 90 percent of Fortune 500 companies have ERGs in place. ERGs work.

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But Jews are rarely allowed to form an ERG because most employers erroneously pigeonhole their Jewish employees’ identity as “religious,” and most companies decline to offer ERGs based on their employees’ religious identities. This ignores an important reality about Jews: we’re a people; an ethnicity; a (dare I say?) tribe.

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Jews share a common lineage, history, culture, and language(s) that go beyond a shared creed. Even Jews who never attend synagogue, observe Jewish holidays, or even believe in the religious tenets of Judaism are ethnically Jewish and almost universally identify as Jews. Certainly, the world’s antisemites have developed a wide body of tropes and prejudices against Jewish people unrelated to their religious beliefs.

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There is arguably a legal basis for companies to refuse ERGs based on their employees’ religious identities while at the same time recognizing ERGs based on ethnicity or race. But the legal basis for refusing to accept Jews as an ethnicity—and refusing their right to form an ERG of their own on equal terms with other ethnicities—is virtually non-existent.

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The U.S. Court of Appeals for the Seventh Circuit, for example, has validated the exclusion of religious-based ERGs, holding in Moranski v. Gen. Motors Corp., 433 F.3d 537 (7th Cir. 2005), that Title VII of the Civil Rights Act of 1964 allowed General Motors to recognize employee “Affinity Groups” oriented around race, color, sex, and national origin while prohibiting groups based on participants’ religious beliefs, such as plaintiff’s proposed Christian Employee Network, because General Motors “did not discriminate against him on the basis of his religion, as the program treats equally all groups with religious positions.”

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Moranski’s premise is that differentiation in the formation of ERGs between religious groups (e.g., Jews vs. Christians) might be impermissible, but that discrimination against all religious groups (Jews and Christians) is allowable. That line of reasoning permits employers to pick and choose which protected classes get an ERG and which don’t, so long as there isn’t any picking-and-choosing within a protected class.

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If the right to exclude religious-based ERGs has an identifiable legal basis, so, too, do Jewish employees’ claim to Jewish peoplehood—Jewish ethnicity—and to the right to form an ERG alongside other ethnicity-based ERGs.

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In the aftermath of the Civil War, Congress sought to ensure that all Americans enjoyed “the same right … as is enjoyed by white citizens” to make and enforce contracts free from discrimination, currently embodied in 42 U.S.C. § 1981, including unwritten, at-will employment contracts. See e.g., Lauture v. Int’l Bus. Machines Corp., 216 F.3d 258, 260 (2d Cir. 2000) (“[A]n at-will employee may sue under § 1981 for racially discriminatory termination.”).

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Congress also protected the right to “inherit, purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982. The Supreme Court as recently as 1987 has made clear that these protections extend to Jews; that the Jewish people—as a people—are an ethnic group with shared ancestry entitled to equal treatment under the post-Civil War civil rights act.

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Specifically, in companion cases applying the Civil Rights Act of 1866 to Jewish and Arab victims of discrimination committed by non-Jewish and non-Arab whites—cases framed as Caucasians being discriminated against by other Caucasians—the Court held that Jews and Arabs are races other than white within the meaning of §§ 1981 and 1982 and are thus covered by their protections. In one case, Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604 (1987), an Arab plaintiff (an Iraqi professor) was denied tenure at a college purportedly in violation of § 1981, and in the other, Shaare Tefilah Congregation v. Cobb, 481 U.S. 615 (1987), a synagogue was the victim of antisemitic vandalism purportedly in violation of § 1982.

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The Court’s analysis of §§ 1981 and 1982’s history and purpose, together with its analysis of the meaning of ethnicity and race in both Saint Francis College and Shaare Tefilah, compelled it to conclude that Jews “were among the peoples then considered to be distinct races and hence within the protection of the statute,” Id., at 617-618 even if, as the Shaare Tefilah Court suggested in dicta, a hundred years later, in 1987, “Jews today are not thought to be members of a separate race” as the term “race” had come to be understood. Id., at 617. See also Sherman v. Town of Chester, 752 F.3d 554, 567 (2d Cir. 2014) (“Jews are considered a race for the purposes of §§ 1981 and 1982.”); United States v. Nelson, 277 F.3d 164, 177–78 (2d Cir. 2002) (“St. Francis College and Shaare Tefila [sic] make clear that §§ 1981 and 1982 (and consequently the Thirteenth Amendment) extend to protect the Jewish ‘race.’”); Bachman v. St. Monica’s Congregation, 902 F.2d 1259, 1261 (7th Cir. 1990) (“The civil rights statutes enacted in the period of Reconstruction, in guaranteeing all persons the rights of white citizens, have been held to protect all groups that are ‘races’ in the traditional loose sense, such as Jews and Arabs.”); Lenoble v. Best Temps, Inc., 352 F. Supp. 2d 237, 247 (D. Conn. 2005) (“The first element of a § 1981 claim is satisfied because [plaintiff] is Jewish, and Jews are a distinct race for § 1981 purposes.”); Singer v. Denver Sch. Dist. No. 1, 959 F. Supp. 1325, 1331 (D. Colo. 1997) (“Since [plaintiff] is claiming he was discriminated against as a Jew, a distinct racial group for the purposes of § 1981, Defendants are not entitled to judgment on the basis that he is claiming religious discrimination.”).

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The Court’s analysis of ethnicity using a variety of 19th and 20th-century dictionaries and encyclopedias is particularly interesting as a window through which to view the evolving distinguishing of identities for the purpose of combatting discrimination:

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“These dictionary and encyclopedic sources are somewhat diverse, but it is clear that they do not support the claim that for the purposes of § 1981, Arabs, Englishmen, Germans, and certain other ethnic groups are to be considered a single race. We would expect the legislative history of § 1981, which the Court held in Runyon v. McCrary had its source in the Civil Rights Act of 1866, 14 Stat. 27, as well as the Voting Rights Act of 1870, 16 Stat. 140, 144, to reflect this common understanding, which it surely does.

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The debates are replete with references to the Scandinavian races, Cong.Globe, 39th Cong., 1st Sess., 499 (1866) (remarks of Sen. Cowan), as well as the Chinese, id., at 523 (remarks of Sen. Davis), Latin, id., at 238 (remarks of Rep. Kasson during debate of home rule for the District of Columbia), Spanish, id., at 251 (remarks of Sen. Davis during debate of District of Columbia suffrage), and Anglo-Saxon races, id., at 542 (remarks of Rep. Dawson). Jews, ibid., Mexicans, see ibid., (remarks of Rep. Dawson), blacks, passim, and Mongolians, id., at 498 (remarks of Sen. Cowan), were similarly categorized. Gypsies were referred to as a race. Ibid. (remarks of Sen. Cowan).” Saint Francis College, 481 U.S. at 611–12.

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The recognition that under the law Jews are not merely adherents of a particular religious belief but are part of an ethnic group of people—rendered dispositive by Shaare Tefilah for employment claims brought under the Civil Rights Act of 1866—would also inform a court’s consideration of such a claim of “ethnic” discrimination brought under the employment-related provisions of the Civil Rights Act of 1964, a.k.a., Title VII, 42 U.S.C. § 2000e–2(a)(2), because courts have concluded that Title VII’s express prohibition against racial discrimination encompasses ethnic discrimination. See e.g., Village of Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016) (“We hold only that for purposes of Title VII, ‘race’ encompasses ethnicity, just as it does under § 1981.”); Fukelman v. Delta Air Lines, Inc., 2020 WL 4587496, at *11, n.7 (E.D.N.Y. Apr. 13, 2020), report and recommendation adopted, 2020 WL 2781662 (E.D.N.Y. May 29, 2020) (analyzing Title VII claims of Jewish employees using Village of Freeport’s race-equals-ethnicity reasoning: “It is undisputed that Jewish and Israeli individuals are members of a protected class under Title VII and the NYSHRL.”); Nassry v. St. Luke’s Roosevelt Hosp., 2016 WL 1274576, at *5, n.5 (S.D.N.Y. Mar. 31, 2016) (Muslim Afghani dentist’s Title VII ethnicity claims treated as racial discrimination claims). It’s worth noting that employment claims made under the Civil Rights Acts of 1866 and 1964 are analyzed using the same substantive standards. See e.g., Almontaser v. New York City Dep’t of Educ., 2014 WL 3110019, at *5 (E.D.N.Y. July 8, 2014).

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Thus, the Title VII inquiry relevant to putting a proposed Jewish ERG on equal footing with an existing ethnicity-based ERG is simply whether Jewish employees are members of an ethnic group or merely followers of a religious faith.

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Courts have had limited opportunity under Title VII to evaluate Jewish ethnicity because Title VII’s express inclusion of “religion” as a protected identity usually makes the inquiry into Jewish ethnic identity unnecessarily academic. Under Title VII, the religion/ethnicity distinction rarely matters, and rarely merits exploration. The ERG/Title VII construct which Moranski grappled with is highly unusual in that it effectively allows employees who identify as religious to be treated less favorably than employees who identify as a different category protected by Title VII.

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Nonetheless, the few Title VII Jewish ethnicity cases on record should ring alarm bells for employers with ethnicity-based ERGs who refuse to recognize a Jewish ERG. Two Title VII cases recognized Jewish plaintiffs as protected by Title VII by finding the Jewish people shared a “national ancestry”—a component of ethnicity, if not its outright equivalent.

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Compston v. Borden, Inc., 424 F. Supp. 157, 161 (S.D. Ohio 1976), found discrimination based on religion and “national ancestry” where an employee whose paternal grandmother was Jewish suffered a torrent of antisemitic abuse after he “casually mentioned in the shop that he believed in the basic tenets of Judaism.” This occurred even though, “[h]e further testified that he is not now, nor has he ever been, a practicing member of the Jewish faith … [and] … [h]is grasp of the fundamental tenets of Judaism is a rather poor one.”

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Weiss v. United States, 595 F. Supp. 1050, 1058 (E.D. Va. 1984), also found that Title VII protected a Jewish employee because of his religion “and national ancestry.”

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Fukelman v. Delta Air Lines, Inc., 2020 WL 4587496 (E.D.N.Y. Apr. 13, 2020), report and recommendation adopted, 2020 WL 2781662 (E.D.N.Y. May 29, 2020) relied on the reasoning of the U.S. Court of Appeals for the Second Circuit in Village of Freeport, referenced above, to expressly use an ethnicity analysis to conclude that the “Jewish” Title VII discrimination claims made by employees who were themselves Jewish, Israeli, and/or Hebrew speaking (or who associated with such employees) were valid as ethnicity claims:

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It is undisputed that Jewish and Israeli individuals are members of a protected class under Title VII and the NYSHRL. Village of Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016) (“for purposes of Title VII, ‘race’ encompasses ethnicity, just as it does under § 1981”); Jews for Jesus, Inc. v. Jewish Cmty. Relations Council of New York, Inc., 968 F.2d 286, 291 (2d Cir. 1992) (Jews are considered a race under § 1981). Plaintiffs do not allege a language-based discrimination claim separate from the claim based on ethnicity (Jewish) and nationality (Israeli). For ease of reference, this claim is referred to as one based on ethnicity.

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Fukelman, 2020 WL 4587496, at *11, n.7. Interestingly, plaintiffs did not seem to have invoked “religion” as their protected class at all: “They allege discrimination on the basis of ethnicity, age, medical leave, and/or disability, and that they were subjected to a hostile work environment, and retaliation.” Id. at *1.

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Meanwhile, two other cases provide very slender reeds of legal hope upon which an employer can rest its denial of a Jewish ERG where it recognizes other ethnicity-based ERGs.

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In Bonadona v. Louisiana Coll., the Court simply cited the dicta in Shaare Tefilah about Jews no longer being considered a race in 1987 for the proposition that “[a]t the time it [Title VII] was passed [in 1964], the Jews were not thought of as a separate race. Had they been the issue could and would likely have been addressed by now via precedential case law and/or the amendment to Title VII in 1991.” 2019 WL 4073247, at *3 (W.D. La. Aug. 28, 2019). Another court, Martinez-Nolan v. Tyson Poultry, Inc., considered the question of Jewish ethnicity under Title VII for purposes of interpreting Arkansas’ state anti-discrimination law, and merely cited Bonadona without analysis. 2021 WL 469005 (W.D. Ark. Feb. 9, 2021).

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Indeed, accepting Jewish ethnicity as a protected identity under the Civil Rights Act of 1964’s employment section, Title VII, is consistent with how Jewish identity is interpreted under the Act’s section prohibiting discrimination in government programs (particularly education), Title VI.

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Title VI prohibits discrimination in federally funded programs on the basis of “race, color, or national origin”—but not religion. 42 U.S.C. § 2000d . Nonetheless, in an effort to combat antisemitism on college campuses, both the U.S. Department of Education and Department of Justice have recognized that Title VI protects Jews (and others) “when that discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than its members’ religious practice.” Title VI and Coverage of Religiously Identifiable Groups, Thomas E. Perez, Asst. Attorney General, Civil Rights Division, U.S. Dept. of Justice, (Sept. 8, 2010). See also, Title VI and Title IX Religious Discrimination in Schools and Colleges, Kenneth L. Marcus, Dep. Asst. Secretary for Enforcement, Delegated the Authority of the Asst. Secretary for Civil Rights (Sept. 13, 2004).

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That is, Jews are an ethnicity under Title VI and, when discriminated against based on those ethnic characteristics, merit protection under Title VI’s prohibition against “race, color, or national origin” discrimination.

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Thus, relying on these opinions and the aforementioned 42 U.S.C. §§ 1981 and 1982 jurisprudence, the Court in T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d 332, 357 (S.D.N.Y. 2014), invoked Title VI’s protections where Jewish students “had anti-Semitic slurs repeatedly directed at them, witnessed swastika graffiti, and were subjected to anti-Semitic ‘jokes’ … were also called “crispy” or told that they should have been burned in the Holocaust … [and] claim to have suffered physical harassment, including being slapped, physically restrained, and having coins thrown at them.”

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Likewise, Weiss v. City Univ. of New York, 2019 WL 1244508, at *7 (S.D.N.Y. Mar. 18, 2019), found that a college official’s statement to a Hasidic (ultra-Orthodox) Jewish woman applying to its social work graduate program that “Jews from religious backgrounds are too conservative to be social workers” states both Fourteenth Amendment equal protection and Title VI claims based on Jewish ethnicity, distinct from her claims based on religious discrimination.

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Simply put, employers who refuse to recognize their Jewish employees’ right to establish an ERG based on their Jewish ethnicity, alongside other ethnicity-based ERGs, risk running afoul of both the Civil Rights Acts of 1866 and 1964, not to mention state and local antidiscrimination ordinances which might provide employees even more robust protections than does federal law. Companies that support race- and ethnicity-based ERGs but not Jewish ones do so at tremendous legal risk. And who wants to be on the wrong side of the “U.S. National Strategy to Counter Antisemitism?”

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Rory Lancman is a former New York State Assembly Member and New York City Council Member and currently consults for the Louis D. Brandeis Center for Human Rights Under Law as Senior Counsel and Director of Corporate Initiatives.