Tuesday, July 17, 2018

Federal Court: "Jewish" Can Be a Race Under Title VII

Last week, a federal court in Louisiana handed down a very interesting decision in Bonadona v. Louisiana College, concerning whether "Jewish" could be a racial category for purposes of Title VII litigation.

The "is Jewish a race" question is notoriously nettlesome (oh boy is it nettlesome), but it generally can be skirted in law because most anti-discrimination statutes which have race as a protected status protect religious identity as well. But Bonadona managed to tee up the question with possibly the most perfect set of facts imaginable.

Joshua Bonadona was born Jewish to a Jewish mother, but converted to Christianity while playing football at a Christian college and is now a practicing Baptist. After graduating, he applied for a job as a football coach at his alma mater, only to be rejected at the last stage because the college President (he alleges) objected to his "Jewish blood." Yup, "Jewish blood."

So on the one hand, we have a case where the plaintiff has to make a racial rather than a religious discrimination argument because he's not religiously Jewish. And on the other hand, we have alleged statements by the defendant that frame the antisemitism in the most racialized way imaginable. In his Racism: A Short History, George Frederickson excavates how the very concept of race had its origins in the idea of limpieza de sangre -- "purity of blood" -- which was used to discriminate against Jewish converts to Christianity in the wake of the Inquisition. Bonadona's case seems to be a lineal descendant of that fusion of religious and racial antisemitism directed at formerly-Jewish Christians.

The court ended up concluding that Jewish could be a racial identity under Title VII. Certainly that seems right to me under these facts. In Shaare Tefila Congregation v. Cobb, the Supreme Court concluded that Jewishness should be considered a racial identity for the purpose of Section 1981 claims, as (regardless of its status today) Jewishness would have been considered a racial identity when the statute was passed in 1866 (a companion case reached the same conclusion for Arab identity; interestingly, this conclusion -- that Jewishness was a race in 1866, but might not be today -- was precisely how Jewish amici at the time urged the Court to resolve the "is Jewish a race" question).

The court here correctly noted that Cobb doesn't conclusively establish that Jewish is a race for all times or all purposes. But it does indicate that race is as it does, and that rather than coming to some conclusive scientific or sociological determination of whether Jewish "really" is or isn't a race, the better move is to analyze when/how Jewishness has and does operate in practice as a racial identity. The court concluded that much of the history of antisemitism in America has taken on a racialized frame (Bonadona's allegations represent a particularly striking example), and hence Jewishness can be legitimately be characterized as a race in seeking to remedy that discrimination.

One question that remains open is whether "Jewishness" should always be considered a racialized identity even in circumstances where the form of the alleged antisemitism isn't as blatantly racialized as it was alleged to be here. That I'm not entirely sure about. On the one hand, if one side of the "race is a mutable and fluid concept" coin is that we should accept the existence of racialized antisemitism even in circumstances or eras where Jewishness is not typically thought of as a "race", then the other side of that coin has to be that in other circumstances the concept of race will mutate and flow such that even genuine antisemitism won't be conceived or experienced in racial terms. On the other hand, I'm not sure what utility there is in such fine-grained slicing and dicing, particularly given that I believe anti-discrimination should be broadly construed to effectuate its remedial purpose and few would argue that combating antisemitism -- of whatever kind -- is among those purposes.

The court's analysis, on my quick read, suggests that it thinks Jews should always have access to race discrimination claims under Title VII. But that really wasn't at issue here and, again, in most cases that don't have these (oh-so-perfect) facts it won't generally come up.

1 comment:

Unknown said...

I would say it isn't the Jewish identity that makes it covered under anti-racial discrimination, it is the expressed discrimination on the grounds of alleged race that brings racial discrimination into ply regardless of the reality or not of the racial designation.