Tuesday, January 06, 2015

How the "Jews Lose" (in the UK)

I got my hands on a copy of Didi Herman's An Unfortunate Coincidence: Jews, Jewishness, and English Law (referenced in this post). It is excellent so far. I'm about 50 pages in, and the myriad of ways English judges have of demeaning Jews and Jewish claims is just a joy to behold.

Some of these cases feel a bit archaic -- early 20th century remarks that are so obvious in the construction of Jews are dirty and untrustworthy foreigners. Herman opens with a 1922 insurance case where a policy was held to be validly canceled because the policyholder had not provided his birth name (upon moving to England at age 12, "Euda Gedale" changed his name to "Harry Horne") or revealed that he was born in Romania. This was held to be a material fact that might have legitimately affected the insurance company's decision to issue the policy. Lest we even preserve a modicum of neutrality, the judge hastened to clarify that not every occasion where such facts (national origin, birth name) would they be material -- but in this case, with these facts (Jew, from Eastern Europe), they certainly were. Quoting the court:
One can easily think of cases in which [foreign origin] could not affect the mind of a reasonable underwriter. The assured might have come here from a state where the business and social habits, the training and education that a child or young person received, and the view taken as to the observance of legal and other obligations might be notoriously exacting, the same as those prevailing here . . . . Each case must depend upon its own circumstances. The circumstances here are that the plaintiff came from Eastern Europe . . . . It is impossible to say that matters such as nationality, caste and early domocil cannot be of importance in judging as to the risk that underwriters run . . . . To say that is to say that there are no racial differences, no national differences as regards to training and education and the other matters I have mentioned. I say nothing, of course, against the national characteristics of the race to which the plaintiff belongs." (quoted in Herman at 34)
Of course you don't.

Other cases hit upon one of my favorite themes, the idea of the Jew who is far too sensitive about anti-Semitism and is making it up where it does not exist. But the first one that made my jaw hit the floor was a 1987 decision in Simon v. Brimham Associates.* In Brisham, a Jewish man was being interviewed by an employment agency. The interviewer told the man that the employers for the job were Arab and that they would not hire any Jews. They asked the man what his religion was, and he instead walked out of interview. The court found no religious discrimination, because the interviewer did not "know" the man was Jewish and asked all of their interviewees what their religion was. Hence, there was no discrimination, even though the interviewer admitted that he did suspect that the man "might be a Jew" and even though the "religion" question could have served no legitimate purpose other than to effectuate the discrimination the interviewer admitted to in the interview itself. Mind-boggling.**

In any event, thus far the theme of Herman's book seems to be that if you're a Jew in English courts, you will lose, badly, and probably be humiliated in the process. Cheery!

* I should note, by way of caveat, that I have not read the decision myself (I'm working on obtaining a copy) and am no expert on English law, discrimination or otherwise. I am relying on Professor Herman's account, but she is a law professor and so there is no reason to think she is convoying the facts of the case or the opinion inaccurately. UPDATE: I've now read the opinion and Professor Herman was entirely accurate in her description. The decision is absolutely appalling.

** I'd say that in American law this would be an open-and-shut case, since the agency admitted to a "no Jews" policy for the position in question and that's direct evidence of discrimination. But then I remembered that I'm perpetually underestimating the capacity of American courts to avoid making discrimination findings, so I'll back off the conclusion.

1 comment:

Andy Dowland said...

The important fact is that it was perfectly legal to discriminate on the grounds of religion in England, Wales and Scotland(*1) until 2002 when EU Directive 2000/78 came into force. So, yes, Mr Simon was discriminated against, but unprotected at the time. Several wrongs don't make a right, but it was shown during the same period that it was perfectly okay to discriminate against Christians, Muslims and Rastafarians but not okay to discriminate against Sikhs as they were considered to be a racial group as well as a religious one. I can't find any case law involving Hindus or Buddhists, would assume that Buddhist claimants would fail, but Hindu claimants would have succeeded given a sympathetic judge.

Simon v Brimham Associates is also an interesting case that I have used to advise members. As Mr Simon didn't wait to see if he wouldn't get the job, but withdrew from the recruitment process, the court ruled that he wasn't discriminated against at all even if that discrimination was legal. the reason he didn't get the job was that he didn't want it. Lesson to learn, if you think you're about to get discriminated against wait until it's happened before suing them.

(*1) Northern Ireland, for obvious reasons, had religious discrimination outlawed earlier.