By: Amy Epstein Gluck

So this Report and Recommendation, out of the District Court for the Western District of Louisiana (Alexandria Division), graced my screen today. The question U.S. Magistrate Mark L. Hornsby faced was whether federal anti-discrimination law’s prohibition of racial discrimination protects a job applicant who does not get the job because of his Jewish heritage or “blood.”

While we’ve written on this blog about grooming and appearance policies and accommodating religious preferences, we have not considered whether discrimination based on a person “being” Jewish or Hispanic or Arabic could constitute anything other than unlawful discrimination, within the meaning of Title VII of the Civil Rights Act of 1964 (“Title VII”), based on religion or national origin. Title VII prohibits discrimination against protected groups as to the terms, conditions, and privileges of employment, including hiring.

Judge Hornsby’s Report gives us reason to delve into this interesting and novel discussion.

The Case

In Bonadona v. Louisiana College, et al., Josh Bonadona, the plaintiff (I’m calling him Josh), studied and played football at Louisiana College (“LC”), which describes itself as a private, Baptist college whose “primary concern” is to “enhance student learning and to encourage the student’s Christian growth.” All good and fine.

Importantly, Josh’s mom was Jewish, and his dad was Catholic. During college, perhaps unsurprisingly, Josh converted to Christianity, which he made known to the team and coach.

After graduation, he worked for LC as a football coach, left the position, and then sought to return to it. The head coach enthusiastically recommended him, and only him, for the position, and Josh was the most qualified applicant. BUT, because this is always a “but,” the president of LC rejected his application for the assistant coach position.

Was it something he said?

Well, maybe.

Josh Had “Jewish Blood”

As noted by the Court, during the interview, the president asked Josh about his parents’ religious affiliations, which Josh truthfully disclosed. He repeatedly stated and clarified during the interview that he was a “practicing member of the Christian faith.”

However, the LC coach told Josh that the president told him that LC would not hire him because of his “Jewish descent.” When Josh asked for clarification, Coach told him that the president refused to approve his hiring because of what the president called Josh’s “Jewish blood.”

Wait, what? How is this a Race Discrimination Case? The Kid is Jewish!

Josh did not allege discrimination based on religion because he is a practicing Baptist. Rather, he filed this case pursuant to Title VII and 42 U.S.C. § 1981 alleging that LC unlawfully refused to hire him because of his race.

Could he have alleged discrimination based on religion. Probably. And LC would have probably defended by stating that Josh repeatedly stated that he actively practiced the Baptist religion due to his conversion, leading the devotionals, and similar acts.

The Court  denied LC’s motion to dismiss the complaint, holding that discrimination based on Jewish ethnic heritage is a form of race discrimination.

The Court stated:

America is no stranger to anti-Semitism, which is often rooted in prejudice against a person based on his heritage/ethnicity without regard to the person’s particular religious beliefs. Jewish citizens have been excluded from certain clubs or neighborhoods, and they have been denied jobs and other opportunities based on the fact that they were Jewish, with no particular concern as to a given individual’s religious leanings. Thus, they have been treated like a racial or ethnic group that Title VII was designed to protect from employment discrimination based on membership in that group. The undersigned is of the opinion that Plaintiff’s amended complaint alleges facts that state a claim of Title VII employment discrimination based on race.

As I read this to my husband on the fourth hour of what I’m sure will turn out to be a gazillion hour road trip (read: I-95N, a summer Sunday), he said to me “Huh? What? How does Title VII even define race?”

Ok. Let’s back this truck up.

Title VII Does Not Define The Word “Race”

The Court asked that question too!

And, he strove to answer it since the complaint did not allege discrimination based on national origin, religion, or any other protected category set forth in Title VII. Interesting, the complaint did not allege discrimination based on Josh’s “perceived” religion or national origin, which Title VII equally prohibits. You can read the EEOC’s views on the “perceived as” aspect of Title VII’s prohibitions based on national origin here and based on religion (in the examples) here.

Returning to the actual allegations, the Court noted that in fact, Title VII itself does not define “race.” Even the Supreme Court has not defined “race” under Title VII.

The Court drew parallels to the Supreme Court’s rulings as to whether Jews and persons of Arab origin were protected by statutes that prohibit racially discriminatory behavior and noted that modern biologists and anthropologists criticize racial classifications as arbitrary and of little value.

A 2016 Second Circuit decision, which addressed whether “Hispanic” constituted a “race” within the meaning of Title VII, swayed the Court. It  concluded that discrimination based on a person’s ethnicity, e.g., Hispanic, was racial discrimination.

Noting that courts have “regularly held that anti-Semitic harassment and discrimination amount to racial discrimination,” Judge Hornsby articulated the debate about considering anti-Semitism a form of racism:

Modern sociologists and anthropologists…debate whether Judaism is a people, a religion, or both. There is no doubt, however, that many people have and continue to view being Jewish as a racial identity. “Jews have been variously perceived as black, Asian, or white, depending on the nature of the perceiver’s bias.” [citation omitted] See also Zahava Moerdler, Racializing Antisemitism: The Development of Racist Antisemitism and Its Current Manifestations 40 Fordham Int’l L.J. 1281, 1282 (2017) (“Antisemitism is not only the expression of religious discrimination, but a form of racism.”).

Based on this rationale and reasoning, the Court denied LC’s motion to dismiss.

Employer Takeaway:

Short and simple: do not treat applicants or employees adversely based on their inclusion in a protected class, even if you’re not sure which protected class they correctly belong to—Title VII prohibits discrimination based on race, color, religion, or national origin equally.