"There is no mathematically precise test to prove a hostile work environment; courts consider issues like the frequency and severity of the conduct."
By Deedee Bitran, a Senior Counsel and Director of Pro Bono in the StandWithUs Saidoff Legal Department and Of Counsel at Shutts and Bowen LLP .
(March 5, 2025 / JNS)
“My supervisor called me ‘Anne Frank’ multiple times, laughed and asked if I ‘had a diary to go write,’ ” a Jewish woman told me last month as we discussed whether she had a valid claim for a hostile work environment due to antisemitism.
For nearly a decade, my work has focused on commercial litigation and employment law at Miami’s oldest law firm, where I remain “Of Counsel.” Growing up, I heard my grandmother’s stories about how, as a surgeon, she operated underground on injured Israeli civilians during the 1973 Yom Kippur War and how my grandfather, a pulmonologist, helped found the intensive-care unit at Shaare Zedek Medical Center Hospital in Jerusalem. I always admired how my grandparents used their professional skills to support and protect Israel.
After the Hamas-led terrorist attacks in southern Israel on Oct. 7, 2023, I decided to fulfill my lifelong dream of following in their footsteps by dedicating my legal career to fighting antisemitism and so, I joined the StandWithUs legal team in June 2024 as senior counsel. On my first day, I had 15 workplace antisemitism reports from across the United States waiting on my desk. I did not realize just how many egregious cases of workplace antisemitism nationwide would soon be under my purview.
Antisemitism has permeated just about every workplace: universities, hospitals, schools, therapy centers, restaurants, camps, technology companies and government agencies. This disturbing nationwide trend is well-documented in multiple recent studies, including one by StandWithUs and published in the Journal of General Internal Medicine, which found at least 40% of Jewish medical professionals have experienced antisemitism in the workplace. Similarly, the Anti-Defamation League recently published that Jewish Americans have a 24% harder time securing jobs even when their résumés are identical to their non-Jewish counterparts applying for the same jobs.
These studies are consistent with the shocking, infuriating and heartbreaking reports I hear from Jewish workers every day. A right to a work environment free from discrimination based on religion, race, national origin and more is guaranteed under Title VII of the Civil Rights Act of 1964. Yet, many Jews are finding their workplaces and potential workplaces unwelcoming.
The most common claim is of a “hostile work environment.” Such a place is permeated with discriminatory intimidation because of an employee’s protected-class status—in this case, religion—and is sufficiently severe or pervasive to alter the conditions of a person’s job.
There is no mathematically precise test to prove a hostile work environment. Courts analyze all the circumstances, including the frequency and severity of the discriminatory conduct, whether it was physically threatening or humiliating, and whether it unreasonably interfered with the employee’s work performance.
Employees filing hostile workplace place claims due to antisemitism report seeing swastikas, racial slurs and an image of the Star of David with a knife through it graffitied in workplace bathrooms, breakrooms and/or elevators along with antisemitic images on fliers being distributed or hung up on bulletin boards in the workplace. Such antisemitic graffiti and fliers have legal significance because they definitively can contribute to a hostile work environment.
As a federal court has stated: “Swastikas are a symbol of a regime of hatred unparalleled in world history. That regime was dedicated to the oppression of those of Jewish heritage through genocide. The symbol is one of hatred and oppression. And it can support a racially hostile environment claim in violation of Title VII when combined with similar symbols of racial hatred and bigotry.”
Additionally, employees are reporting that their co-workers and supervisors are posting antisemitic material on their personal social-media pages and encouraging, in those posts, hostile conduct toward Jewish colleagues. Those posts advocate for rising up against Zionists wherever they are found. They also spread antisemitic tropes about Jewish power and money to fuel resentment and animosity toward Jews.
While employees might mistakenly believe they can post racist content on their personal social-media pages without consequences, the Equal Employment Opportunity Commission and the courts explain that even if the discriminatory or harassing conduct occurs wholly offsite, it remains relevant to the extent that it affects the working environment. And if posts are viewed or engaged with in the workplace itself, they can, potentially, support a hostile work environment claim.
I frequently hear about co-workers yelling antisemitic slurs in the workplace, giving antisemitic lectures at work to their coworkers (for instance, claiming Jews control the weather) and even blasting “Death to Jews” on a work computer during work hours. These situations likely present actionable hostile work environment claims.
One federal court concluded that calling an employee a “Jewish American princess” and referencing “Jewish money” was enough to state a hostile work environment claim when challenged with a motion to dismiss. Another federal court found that repeatedly calling a Jewish employee “the smart Hebe” or “Jewish rep” was enough to deny the employer’s motion for summary judgment.
There is no First Amendment right to harass or discriminate in the workplace or create a hostile work environment. The California Supreme Court noted “some forms of pure speech are not constitutionally protected, by observing that words ‘may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices.’”
Likewise, a Florida appellate court held that when a government employer disciplined a worker for making numerous antisemitic remarks to a coworker, the antisemitic remarks were not protected by the First Amendment and the employer’s actions were just.
The second most common type of claims are retaliation ones, as Title VII prohibits retaliation for opposing practices made unlawful by this act. For example, when an employee raised concerns about workplace antisemitism, instead of addressing these concerns, his employer transferred him to another branch of their business.
If an employee has a good faith, reasonable belief that an employment practice is unlawful and complains, that complaint constitutes protected activity, and an employer cannot retaliate against the employee for making the complaint. A federal court recently found that a case in which a Jewish employee was fired shortly after advocating for the creation of a Jewish Employee Resource Group to combat antisemitism should be heard by a jury.
The third most common claims are discrimination claims. Under Title VII, an employer cannot discriminate against any employee because of a person’s religion and/or national origin—such as being Israeli.
Among the claims in this arena that I have dealt with are:
A Jewish applicant’s job offer was rescinded after she told her future employer that she needed to leave the office an hour early on Fridays to make it home in time to observe Shabbat.
Another Jewish applicant who did not get the job was told during her interview that everyone should be able to agree that “killing babies is wrong.”
A Jewish employee was disciplined because of a third-party complaint, yet the employer refused to apply its own policy and show the employee the official complaint.
A Jewish employee who offered to provide a coworker with educational materials after the coworker specifically asked at work for the Jewish perspective about Oct. 7 was fired shortly thereafter for contradictory and false alleged performance issues.
I have had countless reports of employers refusing to enforce their handbook policies regarding political, controversial or threatening attire in the workplace when employees show up wearing watermelon pins or items glorifying Hamas terrorists. In many instances, the only time the employer enforces such policies is when Jewish employees wear pro-Israel accessories.
Lastly, I have helped guide a handful of people with constructive discharge claims. This occurs when an employee’s working conditions are so intolerable that a reasonable person in that same position would have felt compelled to resign. For example, a federal court found that a Jewish employee plausibly alleged a constructive discharge claim when he was forced to work directly with a CEO who made bigoted comments toward the Jewish religion, used religious slurs, expressed dismay at working with someone of the Jewish religion on an “almost weekly basis” and “became more hostile” after the Jewish employee’s numerous complaints.
The stories I have heard about antisemitism in the workplace should alarm every person, regardless of his or her religion or national origin. Antisemitism is the “canary in the coal mine.” As Rabbi Lord Jonathan Saks said, “The hate that begins with Jews never ends with the Jews.”
I never thought I would be working at a nonprofit, as I was once determined to be the youngest equity partner at my law firm. But after the atrocities on Oct. 7 in Israel, I reassessed my priorities in life. I chose to shift my career trajectory because I recognize how important it is to fight back against antisemitism and hold employers who allow for antisemitism to permeate the workplace accountable.
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