Human Resources News & Insights

Can he sue for anti-Semitic bias if he’s not Jewish?

An employee files a discrimination suit because of co-workers’ alleged anti-Semitic remarks. The thing is, he’s not Jewish. Did he win?

Read the dramatized version of this real-life case and see if you can determine the outcome.

The scene

“Steve Birch is suing us over anti-Semitic remarks?” asked manager Carla Stevens. “He’s not even Jewish.”

Carla sat opposite HR manager Howard Hannaford in Howard’s office.

“We’re trying to get to the bottom of what happened,” said Howard, leaning back in his chair. “You were one of his supervisors. Fill us in.”

Good-natured ribbing, or something more serious?

“Well, Steve worked for three people – me and two other guys,” Carla said.

“Looking back on it, there was definitely some good-natured ribbing among the three of them,” she said.

“To be honest, though, I never thought much of it,” she continued.

“Did you ever think to tell the other guys to cool it?” asked Howard.

“No,” said Carla. “I just figured it was part of the way they worked together. Then Steve quit, and now you’re telling me he’s suing us. It doesn’t make sense to me.”

“Seriously,” Carla continued, “Steve’s not even Jewish.

“How can he claim he was discriminated against based on something that doesn’t even apply to him?”

Steve went ahead with his lawsuit against the company.

The firm tried to get the case thrown out.

Did the company win?


The decision

No, the company lost when a judge ruled that Steve could go through with his suit for a hostile work environment.

The judge acknowledged that Steve wasn’t Jewish, and a lower court dismissed the case for that very reason.

But on appeal, a higher court reversed the decision and sent the case to trial.

Its reasoning? If Steve could prove that the discrimination wouldn’t have occurred “but for the perception that he was Jewish,” then he’d be covered under anti-discrimination law.

The real question in the case was what effect the comments would have had on a person of the Jewish faith.

Analysis: They can sue even if not in protected class

The court took a broad interpretation of anti-bias law by saying that a person who isn’t a member of a protected class can still pursue a claim for being perceived as one.

The ruling moves the focus away from the actual characteristics of the person complaining and more toward what comments he or she endures – and how firms respond to them.

The ruling came out of a state court, and it’s specific to New Jersey. But the decision still serves as a warning to companies across the U.S.

Cite: Cowher v. Carson & Roberts, Merkle, Unangst and Gingerelli.


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