EEOC Compliance Manual on Religious Discrimination
The EEOC enforces federal laws prohibiting employment discrimination. In January 2021, it published the Compliance Manual on Religious Discrimination, which contains a passage designed to illustrate religious discrimination. It presents three examples:
An otherwise qualified applicant is not hired because he is a self-described evangelical Christian. A qualified non-Jewish employee is denied promotion because the supervisor wishes to give a preference based on religion to a fellow Jewish employee. An employer terminates an employee based on his disclosure to the employer that he has recently converted to the Baha’i Faith.
Section 12: Religious Discrimination, 12-I.A.1, Example 1 “Employment Decisions Based on ‘Religion’”
The second sentence in this passage, intentionally or not, reflects the antisemitic trope that Jews are clannish. This stereotype is widely held: According to a 2022 Anti-Defamation League (ADL) survey, 53 percent of respondents agreed with the statement that “Jews in business go out of their way to hire other Jews.”
Two parties are responsible for this passage: those who wrote it and those who approved it. The writers presumably started with a simple, non-antisemitic fact pattern that mirrored the Christian and Baha’i examples: “An otherwise qualified applicant is not hired because he is Jewish.” The Christian and Baha’i examples do not provide fact patterns that reinforce stereotypes.
The writers might have similarly provided the “Jewish” example. They instead chose to modify the example in certain telling ways. For example, they made the victim a non-Jew and the victimizer a Jew. They depicted the Jew as engaged in illegal activity, playing into a stereotype that Jews are devious and dishonest. They gave the Jew the power to control the fate of the non-Jew. They depicted the Jew as disloyal to the employer, who desired to promote the most qualified person.
While it seems unlikely the EEOC intended to lend credence to antisemitic stereotypes that Jews are dishonest, devious, disloyal, malevolent, controlling, and give unfair advantages to fellow Jews, the example can clearly be interpreted that way. Asserting or implying that Jews possess these odious qualities is a form of group defamation or hate speech. In some countries, this kind of anti-Jewish propaganda would be actionable.
The people who approved the manual’s publication with this passage also should have known better. Even if this language reflects unintentional or unconscious anti-Jewish bias, it demonstrates the ease with which such bias can infect otherwise sound legal minds. The fact that this appears in an EEOC publication magnifies the problem. If there is any agency that should know better it is the EEOC, an agency charged with fighting discrimination.
Clayton v Ramsden (UK 1943)
The case of Clayton v Ramsden, decided by the House of Lords in 1943, involved construing the will of Mr. Samuel, a Jewish man who conditioned a gift to his daughter Edna on her marrying someone of “Jewish parentage.” The lower court sensibly interpreted “Jewish parentage” to mean “Jewish parents” and gave effect to Mr. Samuel’s desire to incentivize Edna to marry a Jewish person.
The House of Lords found the term “Jewish parentage” ambiguous—it found it could refer to either the parents’ religion or their “race.” Which son-in-law would Mr. Samuel have preferred: a man of Jewish “blood” who converted to Christianity or a man of Gentile blood who converted to Judaism?
The House of Lords deemed that Mr. Samuel preferred a son-in-law who was “racially” Jewish; it reasoned that Jews instinctively seek to preserve the blood purity of their race—a biological basis for the trope of Jewish clannishness propagated by the EEOC. The House of Lords then ruled that the non-existent blood purity condition it inserted into the will was void for vagueness: Mr. Samuel had not specified the quantum of Jewish blood he wanted his son-in-law to possess. This allowed Edna to inherit an unrestricted gift and marry a Christian man.
The Clayton case, like the EEOC manual, is a testament to antisemitism’s power to impair cognition. The House of Lords’s opinion posited nonsensical canons of construction by interpreting an uncontroversial and enforceable term as having an unenforceable alternative meaning and concluding that the donor intended the unenforceable alternative meaning. It established a perverse precedent seemingly applicable only to Jews. Where a group can be legally defined by reference to either race or religion and where a racial definition would be more injurious to the group, the group should be defined (injuriously) by race. Lastly, Clayton’s outcome failed to honor the donor’s intent, violating the central principle of donative transfer law. Clayton, the product of antisemitic thinking, is an embarrassment to the legal profession.
Shaare Tefila Congregation v. Cobb (1987)
In November 1982, white supremacists defaced Shaare Tefila Congregation in Silver Spring, Maryland, with Nazi-inspired graffiti, including swastikas and antisemitic slogans such as “Death to the Jude” and “Take a Shower Jew.”
In a groundbreaking lawsuit, the congregation sought relief under Section 1982, the race-based anti-discrimination law that provides that “all persons” shall enjoy the property rights of “white citizens.” Before this case, Jews sought relief only under statutes prohibiting discrimination based on religion. In other words, Jews were legally defined as a religious group for civil rights laws.
Yet despite bringing the suit, the congregation was partly afraid of winning. It feared that if Jews obtained relief under a race-based discrimination law, such a ruling might reinvigorate racial antisemitism. In the words of the National Jewish Community Relations Council, “there ought not to be the suggestion that the Jewish community in any way gives sanction to the notion that Jews constitute a race.”
The Shaare Tefila Congregation had a straightforward path to victory: to allege that Jews should be a protected group under Section 1982 on grounds that Jews today—although not a biological race—are widely perceived or socially constructed as one. Yet rather than make a solid argument they feared would hearten racial antisemites, the congregation’s lawyers advanced a weaker alternative that was ultimately unsuccessful: that the vandals violated the statute insofar as they perceived Jews to be an inferior race, thereby making their actions “racially motivated.” In other words, discrimination against perceived members of a notional, fictional, or imaginary race is impermissible racial discrimination.
By putting the focus on the discriminators’ racial beliefs about Jews, the congregation hoped that the courts would affirm their Section 1982 claim without finding contemporary Jews are a racial group—even on a narrow legal basis for remedial purposes.
The district court, court of appeals, and Supreme Court rejected the Shaare Tefila Congregation’s argument. The argument led to odd outcomes: on the congregation’s theory, Section 1982 would apply only to “ignorant antisemites,” that is, those who labor under the false belief that Jews are a race. By contrast, if a swastika-spraying vandal knows that Jews are not a race, Section 1982 would not apply.
The congregation’s argument also provided no criteria for determining which notional races are covered by Section 1982. Suppose a person thinks that blue-eyed persons are an inferior race and violates a blue-eyed person’s property rights. Can the blue-eyed victim bring a Section 1982 action?
It is a testament to the power of antisemitism that civil rights advocates advanced the weaker argument because they feared that the stronger argument would fuel antisemitism. It is yet another indicator of the threat antisemitism poses to the integrity of our legal system, which relies on each side to present the strongest possible arguments for their position.
Ultimately, the U.S. Supreme Court saved the congregation’s Section 1982 claim by supplying the legal missing link they were too inhibited to advance, namely, the claim that Jews are a protected group under Section 1982. The Supreme Court justified its ruling on the originalist and somewhat strained grounds that Jews were perceived to be a race when the Civil Rights Act of 1866 was enacted. I suspect that for some justices at least, the relevant question was not, “Were Jews considered a race in 1866?” but rather, “Would extending Section 1982’s protections to Jews today advance the statute’s remedial purposes?”
The Shaare Tefila opinion is masterful because of its doctrinal disingenuousness, not despite it. Its artful elision enabled it to reach the correct result and do so in a manner that was sensitive to the congregation’s concerns about racializing American Jews today.
These three instances illustrate how antisemitism can warp the work of lawyers—even intelligent and well-intentioned professionals—by loosening the inhibitions for engaging in antisemitic speech, deranging their legal analysis, and impairing their legal strategizing. They teach lessons at both the micro and macro levels.
Individual lawyers must inoculate themselves from antisemitism to perform their craft at the highest level of proficiency, and the legal profession must eliminate the infection of antisemitism to maintain the integrity and effectiveness of our legal system.
