The United States is facing endemic workplace antisemitism. According to Pew Research, nearly two-thirds of Jews have witnessed workplace antisemitism and report feeling less safe while on the job. Reflecting this malefic trend, a Utah tech entrepreneur, Entrata's CEO Dave Bateman, emailed employees not long ago claiming that "the Jews" masterminded COVID-19 vaccines as a "sadistic effort . . . to euthanize the American People." More recently, the NBA and the Brooklyn Nets suspended star player Kyrie Irving after he tweeted a link to a film rife with antisemitic conspiracies that suggest Jews propagate the Holocaust as a "major falsehood" to "protect their status and power" and to "oppress" Black people. For every incident that captures our national attention like these – there are undoubtedly hundreds more.

Now a survey (albeit unscientific) may reveal how prevalent workplace antisemitism is. A national survey of 1,131 hiring managers – the actual people charged with making hiring decisions – reveals 1 in 3 report their company condones antisemitism, 1 in 3 believe at their workplace antisemitism is common, 1 in 5 say leadership told them not to hire Jews, 1 in 4 make assumptions about if a candidate is Jewish based on appearance, and 1 in 4 were less likely to move forward with Jewish applicants.

As Hanukkah (the Jewish Festival of Lights) approaches, it is worth noting that employers may be a light, even when times seem most dark, by standing up and aggressively combating workplace antisemitism. As Equal Employment Opportunity ("EEOC") Commissioner Andrea Lucas aptly noted, "[t]oo often, incidents of antisemitism in the workplace go ignored, unreported, or unaddressed . . . but we cannot dismiss them. . . These insidious acts at work can both be violations of the law themselves and contribute to a culture of hate that may give rise to physical violence later." Just last month, a University of Arizona professor was murdered at work by a student who wrongly believed he was Jewish, after the student's vast, antisemitic tirades appear to have been ignored.

Here is what employers need to know to foster a dynamic workplace that is cohesive and free of antisemitism:

Workplace Antisemitism May Be Illegal

Title VII of the United States Civil Rights Act of 1964 expressly prohibits employment discrimination based on religion, including Judaism. And the EEOC, which enforces Title VII, recently issued a unanimous resolution specifically condemning violence, harassment, and bias against Jews. Likewise, 48 states' anti-discrimination statutes disallow treating employees prejudicially based on religion.

Illegal workplace antisemitism includes:

  • Treating a Jewish employee (or applicant) differently in any aspect of employment based on religious beliefs, observances, or practices;
    • Religious beliefs are sincerely held beliefs in G-d or non-theistic "moral or ethical beliefs as to what is right and wrong."
    • Religious observances or practices include, by way of example, attending worship services (including on Shabbat or the High Holidays), praying, meditating, religious grooming (like peyot), wearing religious garb or symbols (such as black hats, kippot/yarmulkas, tzitzit, tallit, tefillin, or shtreimel), displaying religious objects, adhering to Kosher dietary rules, or refraining from certain activities.
  • Denying a Jewish employee's (or applicant's) request to reasonably accommodate a sincerely held religious belief, observance, or practice;
    • Some Jews may request an accommodation not to work on the High Holidays (Rosh Hashanah and Yom Kippur) or on Shabbat, from sundown Friday to sundown on Saturday, or to deviate from the standard work attire to wear religious garments. An employer should carefully assess if the employee's request is reasonable or otherwise presents an undue burden that cannot be accommodated.
  • Intentionally segregating a Jewish employee based on religious beliefs, observances, or practices;
    • Based on customer preferences, for example, Jewish employees should not be relegated to the back and prevented from providing frontline services.
  • Subjecting a Jewish employee to harassment because of religious beliefs, observances, or practices; or
  • Retaliating against a Jewish employee who has opposed religious discrimination (or participated in an investigation).

But being Jewish may implicate other protected classes too. The American Jewish community is diverse and multicultural. As the EEOC explains, workplace antisemitism could also involve national origin, race, color, or even genetic discrimination. A federal magistrate in Louisiana, for example, issued a ruling that Title VII may protect a Jew based not just on religion – but race. In Bonadona v. Louisiana College, the Court ruled that, under Title VII, Bonadona, who was born to a Jewish mother but later converted to Christianity, could proceed with his claim on the basis that Jews are a protected race. Louisiana College's President had allegedly denied Bonadona a football coaching position based on what he called Bonadona's "Jewish blood." The Bonadona court recognized that "anti-Semitism . . .is often rooted in prejudice against a person based on his heritage/ethnicity without regard to the person's particular religious beliefs," and concluded that Jews "have [thus] been treated like a racial or ethnic group that Title VII was designed to protect from employment discrimination based on membership in that group."

Certainly, many people view being Jewish as a national or racial identity, not just a religion. To be sure, modern anthropologists, sociologists, and Jews alike openly debate whether Judaism is a people, a religion, or both. Jews are not a monolith. For this reason, Jewish identity is often misunderstood. For example, in the United States, many people associate Jewishness with whiteness, possibly attributed to the overrepresentation of Ashkenazi Jews who descend from Jewish diasporas in Europe. But many Jews argue that Jewishness as whiteness gives breath to the myth of Jewish hegemony (given the association of whiteness with power) and obscures the diverse, unique, and often oppressed experiences of Jews, particularly of Sephardic (from the Iberian Peninsula), Arab, African, or Middle Eastern descent. Moreover, in the United States, Jews are a diverse, multicultural community; Jews come from many different countries, Jews of color represent nearly 15% of the population, and some Jews are areligious, atheist, or agnostic.

Not All Antisemitism Is Blatant

Employers should note that workplace bias against Jews often arises not from illegal or even obvious unequal treatment or openly hostile remarks, but from fleeting and subtle microaggressions that may reflect ignorance rather that conscious prejudice, often from well-intentioned coworkers who nonetheless may leave a colleague feeling unwelcome, alienated, or unsafe. In Judaism, this is known as לשון הרע (lashon hara), translated roughly as "hurtful statements that belittle."

This may include:

  • Inequitable workplace "out-of-office" or "absence" policies, especially for holiday observances. For Jews, getting time off to observe religious holidays may mean using all their personal or vacation days, which is burdensome.
  • Inequitable workplace meetings (planned on religious holidays), parties (where religiously observant dietary restrictions are not honored) or holiday celebrations (honoring certain religious holidays but not others).
  • Antisemitic tropes about Jews that go unchecked, often based on pervasive stereotypes (such as the Jews killed Jesus or Jews are plotting to take over the world, are traitors/disloyal, hold too much control, power, wealth, or are greedy).
  • Antisemitic comments by a non-Jewish coworker to a Jewish coworker, such as "Were you born Jewish?," "You're not Jewish – you're white," "You look Jewish," or "Oh, you don't look Jewish."
  • Derogatory comments, such as "Cheap Jew" or "Jewing the price down."
  • Philosemitic remarks intended to be complimentary. For example, "No wonder Nate is an awesome lawyer – Jews are such good negotiators," "You can always trust Nate including with your money – Jews are always good with money," or "Nate is our guy – not only is he handsome – you know Jews are wicked smart, cunning, and shrewd."
  • The use of Holocaust (Shoah) metaphors. For example, during the pandemic, Nazi imagery (including yellow stars) was elicited in national debates about COVID-19 vaccine mandates, or using allusions to Nazism, such as "Don't be a grammar-Nazi."
  • Tensions and hostility around geopolitical issues. For example, assuming Jewish coworkers have specific views about or holding Jewish workers to different standards of accountability for views about conflagrations in the Middle East or seeing Jewish employees as indistinguishable from Israelis.

Combating Workplace Antisemitism

Employers can stand up and cultivate a workplace that is cohesive and free of antisemitism by using multiple strategies:

  • Workplace Culture and Cohesion Demands Leadership: Workplace culture and cohesion is often crafted by strong leaders who acknowledge wider social antisemitism, refuse to tolerate workplace antisemitism, are intentional about not being antisemitic or normalizing bias, and who demand the same from all employees.
  • EEO Policies Must Prohibit Antisemitism: Employers should adopt robust equal employment opportunity policies that expressly prohibit antisemitism and set forth clear standards for when employees will be held accountable for any violations.
  • Employee Training and Awareness: All employees should be trained on equal employment opportunity policies, educated about what constitutes antisemitism and its prevalence, and given transparent guidance about what may or may not arise to antisemitism, as it often is unclear.
  • Speak Up – Combating Antisemitism Requires Solidarity in the Face of Hatred: Employers should speak up and condemn societal antisemitism – especially when highly publicized or widely reported. For Jewish employees, there may be an understandable growing concern that society is normalizing antisemitism that they may want acknowledged, an unsettling sense that antisemitic rhetoric is seemingly emanating from the loftiest echelons of our culture and from different spheres. When an antisemitic incident makes headlines, reach out to Jewish employees, let them know you see them, acknowledge their pain, and that you are thinking of them. Employers should also encourage all employees to not tolerate antisemitism, speak up and report antisemitism, no matter how casual, and to be allies with their Jewish colleagues.
  • Workplace DEI Strategies Should Address Antisemitism: According to the Anti-Defamation League, in the United States, antisemitic violence is on the rise, reaching all-time highs this year. This impacts Jews mentally. A workplace DEI strategy should acknowledge that all marginalized groups should be free of social bias, address social bigotries giving rise to antisemitism, support Jewish employees, and ensure Jewish employees feel safe on the job. Since workplace bias against marginalized groups operates as a system of oppression, DEI strategies should recognize the interconnectedness of all forms of hate.
  • Advocate – Ask Jewish Employees Questions: Employers should acknowledge that Jews are not a monolith and be purposeful in asking diverse members of their Jewish staff, with an eye on intersectionality, how Jewish staff can best be advocated for and supported. Don't assume Jewish employees will speak up on their own.
  • Be Vigilant – Watch for Social Triggers for Antisemitism Translatable to Workplace: In the United States, upticks in anti-Jewish bias often occur around international crises (such as monetary crises, flareups in the Middle East, or COVID-19), around elections, or when a highly public figure makes antisemitic remarks. Employers should be vigilant, note any social triggers that may translate to workplace antisemitism, preemptively reiterate prohibitions on antisemitism, and effectuate DEI to ensure inclusion of Jewish employees and that Jewish employees feel safe.
  • Take Complaints of Antisemitism Seriously: Be open to complaints. Employers should adhere to equal employment opportunity policies, swiftly investigate all complaints of antisemitism, and hold violators accountable.

For more information on workplace cohesion or combating workplace antisemitism, please contact a Davis Wright Tremaine LLP employment attorney.