Op-ed authored by Brandeis Center Director of Corporate Initiatives Rory Lancman, published in The Hill on 12/18/23 The scenes of Jewish students experiencing antisemitism on college campuses are frightening. But colleges are also workplaces, and the antisemitism that Jewish staff and faculty are experiencing is no less frightening for its intensity, their inability to avoid it and their greater and more particularized fear of retaliation. The agency charged with enforcing federal anti-discrimination laws in defense of college employees, the Equal Employment Opportunity Commission, and similar human rights commissions in the states and localities, must rise to the occasion to protect Jewish staff and faculty on college campuses, and indeed all Jewish workers in every employment setting. On campuses, college staff, particularly faculty, are more exposed to antisemitic abuse than students because they teach and maintain offices and office hours at fixed places and times. Their social media presence is an important part of their job, not just a hobby or extension of their social lives that can be turned off. Their scholarship — publications and speaking engagements — requires them to put themselves out there for the world to see. They cannot just “keep their heads down” as easily as Jewish students can (an odious solution to antisemitism as it is). And when college employees are victims of antisemitism, they, like all workers, must balance their demands for protection and redress with the very real threat of retaliation against their careers and livelihoods. The college staff and faculty employment ecosystem is a small one. Most college employees lack tenure, and even tenure is a tenuous defense against ostracization in a profession where rewards and punishments — faculty leadership appointments, publishing and conferencing opportunities, and academic collaboration — are doled out largely subjectively. Every college campus where Jewish students have endured frightening and degrading public expressions of rank antisemitism — speeches and symbolism and collective action supporting Jewish genocide and glorifying Jews being raped, kidnapped and murdered — is also a workplace where Jewish staff and faculty have endured the same. And worse. Since the October 7 massacre in Israel, I have counseled Jewish staff and faculty who’ve had their offices defaced, their classroom lectures disrupted, their online evaluations rigged, their previously renowned scholarship attacked, their academic displays taken down and their online spaces overrun with antisemitic invective. One Jewish professor was called out by name and falsely “accused” of having served in the Israel Defense Forces in a rant delivered by another professor in the latter’s class; shortly thereafter the bulletin board outside her office was vandalized. And Israeli staff and faculty working on American campuses are bearing some of the worst instances of workplace antisemitism. Some have taken a leave of absence or quit their positions outright. There is no workplace in America where such antisemitism should be tolerated, including when that workplace is a college campus. But normal workplace antidiscrimination norms aren’t being applied at colleges, and the EEOC has not adopted the same widely accepted definition of antisemitism as is being used when the victim is a student, not an employee. Simply put, the EEOC needs to join this fight immediately. Title VI of the Civil Rights Act of 1964 is the primary federal statute that protects Jewish college students from antisemitism and is enforced administratively by the Office for Civil Rights at the Department of Education. OCR has opened investigations at over a dozen college campuses in defense of students. Federal law, in the form of a presidential executive order, requires OCR in evaluating antisemitism complaints to consider the definition of antisemitism developed by the International Holocaust Remembrance Alliance, a consortium of 35 national governments representing almost all the world’s Jewish population. The IHRA definition is widely embraced by America’s Jewish community and by hundreds of governments and nonprofit organizations in the U.S. and around the world, including in the Biden White House’s recently released U.S. National Strategy to Counter Antisemitism. The IHRA definition focuses attention on certain historically antisemitic tropes about Jewish control and manipulation of the media, economy and government; Holocaust denial; and the demonization, delegitimization and application of double standards to the Jewish state of Israel (e.g., “Delegitimizing the state of Israel and in doing so denying the Jewish people their equal right to self-determination”). But it is the next section of the Civil Rights Act — Title VII — that is the prime federal antidiscrimination law protecting Jewish employees based on their religious beliefs, their ethnicity and, if those Jews are or were Israeli citizens, their national origin. Title VII is enforced by the Equal Employment Opportunity Commission, and the EEOC has not yet explicitly embraced IHRA. It should — quickly. Even still, Title VII is a powerful statute that already gives the EEOC important tools to protect Jewish employees on college campuses. For example, to its great credit, the EEOC has proposed guidance on enforcing Title VII’s prohibition on workplace harassment that recognizes, as many courts already have, that certain symbols and phrases are so shocking — so degrading and evocative of hatred and violence — that even a single instance of their use in the workplace can establish an unlawfully discriminatory hostile environment. The EEOC guidance offers as examples the noose, the swastika and the “n word.” Is not the flag of Hamas and the depiction of Hamas terrorists paragliding into southern Israel on their way to murder Jewish children the swastikas of our time? The chant of “From the river to the sea, Palestine will be free,” a call for extinguishing the Jewish state (and the Jews living there, if necessary) a degradation of Jewish identity, freedom and equality, if not an outright call to genocide?
The U.S. Supreme Court announced Friday that it will hear Groff v. DeJoy (No. 22-174), paving the way for a possible landmark expansion of protections for Americans’ religious rights in the workplace. The United States Postal Service (USPS) denied Petitioner Gerald Groff’s request to accommodate his Sunday sabbath observance. Instead, Groff was repeatedly required to work on his Sunday day of rest. Groff chose to quit rather than violate his sincerely held religious belief. He then took USPS to court under Title VII of the Civil Rights Act of 1964. . Title VII requires employers to make reasonable accommodations for an employee’s sincerely held religious belief unless accommodating the belief would cause an “undue hardship” on the employer’s business. Title VII provides important protections for Americans of faith, as explained in the Brandeis Center’s recent fact sheet and webinar. . However, dicta in Trans World Airlines v. Hardison, 432 U.S. 63 (1977) defines “undue hardship” as anything imposing “more than a de minimis cost” (i.e., anything more than a minimal financial burden) on an employer’s business. This limited Title VII’s protections. Dissenting from the TWA v. Hardison decision, Justice Thurgood Marshall wrote a sharp criticism of the Court’s opinion which he said struck a “fatal blow” to Title VII’s protections for Americans of faith. “I seriously question whether simple English usage permits ‘undue hardship’ to be interpreted to mean ‘more than de minimis cost.’” Justice Marshall further noted that Congress had imported the “undue hardship” language from earlier Equal Employment Opportunity Commission (EEOC) guidance which discussed very difficult or even impossible accommodations. That guidance considered it an undue hardship “where the employee’s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence” (emphasis added). . In a recent Brandeis Center Webinar on Religious Accommodations in the Corporate Workplace, Richard Foltin of the Freedom Forum noted that Congress has repeatedly tried and failed over the years to enact bipartisan legislation strengthening Title VII protections for religious freedom. But federal agencies have found other ways to strengthen Title VII. The Brandeis Center’s recent fact sheet on Religious Accommodations in the Corporate Workplace noted these laudable developments including changes made in the 2021 EEOC Guidance. The Guidance emphasizes that employer denials of employees’ requests for religious accommodations must include evidence-based reasons for the refusal, that adverse employment actions in anticipation of possible religious accommodations violates Title VII, and that employers must grant accommodations to the extent possible without creating an undue burden on their business. . Groff v. DeJoy is an opportunity for the Supreme Court to restore protections to religious Americans going forward, and the Court may be poised to do so. As noted by Brandeis Center Senior Counsel Arthur Traldi in the Brandeis Center’s recent webinar, “litigants bringing claims based on legal protections for their faith have had as much success at the Supreme Court recently as at any time in memory in litigation against government authorities.” . The restored legal protections would be particularly important for members of religious minorities, whose holidays and associated religious restrictions on work may be less commonly understood. Consequently, Jewish, Muslim, Sikh, and Seventh Day Adventist groups all submitted briefs informing the Supreme Court of the hardships that have burdened people of faith for decades. . For instance, Brandeis Center Advisory Board Member Nathan Lewin, who drafted Title VII’s undue burden language and argued in TWA v. Hardison, wrote for nine Jewish organizations imploring the Court to take Groff v. DeJoy. Lewin argued that the Hardison Court had misinterpreted Title VII and “severely impaired employment opportunities of Jewish sabbath-observing Americans.” Lewin described the experience of Orthodox Jewish groups in supporting their members forced to choose between their faith and their work because of Hardison. . The Brandeis Center will continue tracking this litigation carefully and advocating for Jewish and other employees’ civil rights. . Joel Taubman is a Brandeis Center JIGSAW Fellow. He recently served as a Law Clerk at Lewin & Lewin, LLP, where he contributed to the firm’s Amicus Brief in Groff v. DeJoy.
On June 19, the Supreme Court decided in Matal v. Tam that the government cannot refuse to trademark potentially derogatory or offensive names, a decision that will likely impact the national debate about hate speech and the First Amendment for decades. This ruling means that though hate speech remains constitutionally protected as a general matter, harassing conduct remains subject to civil rights laws. The Supreme Court of the United States The case arose when a rock band known as “The Slants” attempted to trademark their band name with the U.S. Patent and Trademark Office (PTO). The band’s request was denied because the trademark would be in violation of the Lanham Act, a federal statute that includes a “disparagement clause” that precludes the PTO from trademarking names that may “disparage” individuals or groups. The term “slant” is considered an ethnic slur directed towards the Asian community. The Court unanimously agreed that the “disparagement clause” violates the First Amendment, but was split as to how. The Court unanimously agreed that the trademarks are not government speech but are inherently private speech because they are the mental creation of a private party. Previously, the Court had determined that government speech was not subject to the First Amendment, and in this decision, Justice Alito warned against the danger of applying the government-speech doctrine too liberally. Supreme Court Justice Samuel Alito delivered the opinion of the Court. Then, Justice Alito was joined by Chief Justice Roberts and Justices Thomas and Breyer in refuting the government’s claims that trademarks were government-subsidized speech, which is not subject to the First Amendment. The Court reasoned that because the filer of a trademark was the party paying a trademark fee, instead of vice versa, this argument was invalid. Then, Justice Alito rejected the government’s argument that a trademark is commercial speech, which is subject to less First Amendment protection. Alito worte that even if it were commercial speech, the denial of a trademark application would not pass the test used to evaluate restrictions on such commercial speech. In a separate opinion, Justice Kennedy was joined by Justices Ginsberg, Kagan and Sotomayor in determining that the “disparagement clause” was solely unconstitutional because it is an example of the government using its own judgment to discriminate against certain trademark requests, while allowing for others it finds more appropriate, constituting what the Court deems “viewpoint discrimination.” Justice Kennedy concludes by stating that “viewpoint discrimination” inherently violates the First Amendment and its purpose to create a “free and open discussion in a democratic society.” The Court’s decision builds upon a trend taken by the Supreme Court in recent years to rule in favor of free speech protections, perhaps most notably in 2011, when the Court in Snyder v. Phelps protected the Constitutional right of protesters to use homophobic and otherwise offensive language outside of a military funeral. Many free speech advocates are calling the Matal ruling a victory for the First Amendment, with the Court further defining free speech jurisprudence that will check government interference with even limited restrictions on free speech. In particular, the Matal decision is being celebrated by the Washington Redskins, the professional NFL team that has been engaged in legal battles since 2014, when PTO refused to renew the team’s trademark over the term “Redskins”, which is perceived to be an offensive slur for Native Americans. Others fear the Matal decision, asserting that it could provide new grounds for hate groups and others looking to trademark names and other materials that could incite hatred or worse for minority groups. The Court has long upheld that hate speech that rises to the level of harassment- at least in cases of race or gender-based harassment- violates Title VII of the Civil Rights Act. This is unlikely to change going forward, but the Matal decision could further blur the line between what constitutes Constitutionally protected hate speech and what is speech that is harassing and/or likely to incite public disorder. The debate around hate speech and the First Amendment is especially pertinent on college campuses, where in recent years administrators, advocacy groups and other stakeholders have argued over what are the appropriate legal steps to take when students are subjected to hateful language by other students. More than half of all American college and university campuses, including many public institutions, have enacted speech codes which seek to limit when and where students can express themselves on campus. This has coupled with a rise in the occurrence of hate-based incidents on campus, including acts of anti-Semitism. Student protesters at UC Irvine assemble an “apartheid wall” on campus In recent years, numerous speeches and lectures organized by pro-Israel students and faculty on college and university campuses have been silenced by protestors. Notable incidents include Jerusalem Mayor Nir Barkat being shouted down by student protestors at San Francisco State University, the physical provocation of an Israeli professor by a student protestor during a private event at the University of Texas at Austin, and most recently last month, the sabotage by student protestors of an event at University of California-Irvine featuring Israeli veteran soldiers with loud chanting, profanity and accusations of genocide. Various state and municipal statutes and university codes of conduct prohibit the disruption of lawful meetings, affirming that the right to freedom of speech does not include the right to deprive others of their First Amendment rights. The Louis D. Brandeis Center for Human Rights Under Law has worked to protect the rights of Jewish and pro-Israel campus communities to safely and peacefully express themselves.
To coincide with the Thanksgiving holiday – and its emphasis on practicing one’s faith freely – the Brandeis Center has issued an important new fact sheet – explaining corporate employees’ legal rights not to be discriminated against because of their religion. . The Pilgrims’ escape from religious persecution in England established deep roots in America’s tradition of religious inclusion. In recent years, federal courts and regulators have placed a renewed emphasis on these protections. Brandeis Center attorneys track this guidance process, and our fact sheet reflects these recent developments. . During the Supreme Court’s past few terms, several justices have expressed views that courts should require more from employers who claim employees’ religious practices are impeding business. And the Equal Employment Opportunity Commission’s revised workplace religious guidance, updated in 2021, grew more explicit in the requirements employers needed to demonstrate. . “While the Brandeis Center continues to place its greatest emphasis on higher education, we are seeing more issues that need to be addressed in the corporate world. This new fact sheet is part of a greater effort to protect Jewish Americans from bias both on and off college campuses,” stated Brandeis Center Founder and Chairman Kenneth L. Marcus. “Anti-Israel ratings in investor tools are a sign that campus anti-Semitism has ‘grown up and reported for work’ in corporate America.” . “The Brandeis Center continues to protect Jewish civil rights wherever they are endangered,” declared Brandeis Center President Alyza D. Lewin. “That includes preventing discriminatory anti-Israel boycotts – such as we achieved against Ben & Jerry’s by negotiating a settlement with Unilever. It also means ensuring Diversity Equity and Inclusion programs in businesses and on campuses include and address anti-Semitism.” . Under Title VII of the Civil Rights Act of 1964, employers are required to make such accommodations unless they impose an “undue hardship” on the conduct of the employer’s business. As the fact sheet emphasizes, not all “hardship” is undue, and both courts and the U.S. Equal Employment Opportunity Commission have been providing increased protections for employees. . As the Brandeis Center’s fact sheet sets forth, employees are protected from discrimination based on their religious practice as well as their religious identity. This means employers must take measures to accommodate their religious employees and ensure their work obligations don’t conflict with their religious obligations. This protection applies to employees from the moment that they apply for a job and continues throughout their employment. . Anti-Semitic discrimination in the workplace is regrettably common: while Jews make up less than 2% of the U.S. population, they typically file 8-10% of religious discrimination claims with the EEOC. “Over half of Jews reported being treated differently or unfairly in the workplace because of their religious identity or beliefs,” observed Brandeis Center Senior Counsel L. Rachel Lerman, referencing a Rice University report. “The need for awareness on this country’s strong protections on religious freedom in the workplace could not be greater.” . The Brandeis Center’s fact sheet identifies common accommodations that employers must make for Jewish employees, including: . Accommodations around the Sabbath and holidays, like not requiring employees to work or scheduling essential work events during times that employees’ faith obliges them to refrain from working; and . Permitting employees to wear religious clothing, such as allowing observant Jewish men to wear beards or skullcaps, head coverings many Jews wear for religious reasons, or allowing observant Jewish women to wear long sleeves or dresses. . To meet their obligations, employers should train employees on how to process requests for accommodations; treat all employees’ requests fairly regardless of what faith tradition they follow; and work to include employees of faith, for instance by establishing Employee Resource Groups for them. Employers should also specifically stand up for their Jewish employees by joining this year’s Shine a Light campaign, as explained by Chairman Marcus in his recent op-ed: ‘BigLaw’s Jewish Problem.’ . For further details, check our fact sheet or contact a Brandeis Center lawyer. [gview file=”https://brandeiscenter.com//home4/klmarcus/public_html/wp-content/uploads/2022/10/religious-accommodations-factsheet-v4-1.pdf”]