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Sunday, September 27, 2020

Proving anti-Jewish discrimination

Eugene Volokh unearths a 10-year-old S.D.N.Y. decision in an action alleging co-workers in a government job referred to him as a "dumb Jew" or "fucking Jew."

Eugene focuses on one defense--that the plaintiff was not Jewish because his mother was not Jewish, he had not converted, and he was not practicing. The court rejected the argument, deeming it not the court's place to define who is Jewish and finding it sufficient that the plaintiff defined himself as being of Jewish "heritage," even if not practicing. One of Eugene's commentators nominates this as the new definition of chutzpah--calling someone a "fucking Jew," then arguing that he is not Jewish.

The rest of the decision is interesting apart from the chutzpah. The court denied summary judgment on a Title VII claim against the city. But the court dismissed a § 1981 claim, because the plaintiff alleged religious rather than racial discrimination. This seems like a pleading error. Courts will treat Judaism as more than a religion for § 1981 purposes. And that would have been an appropriate approach in this case, where the plaintiff did not practice Judaism and focused more on his "heritage" than his religion.

The court  granted summary judgment on claims against several harassing co-workers. Although there was evidence the co-workers had created a hostile religious environment, they were not state actors because they were not his supervisors. This is incoherent. The under-color question should be whether the defendant used his official position to engage in unconstitutional conduct and whether that position made the unconstitutional conduct possible. That should be satisfied here--the unconstitutional conduct is the religiously motivated harassment and they could engage in that harassment only because of their official positions in government. Harassment does not require a supervisory relationship, so it should be irrelevant to the under-color/state-action analysis.

Posted by Howard Wasserman on September 27, 2020 at 01:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink

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