The Volokh Conspiracy

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Harassment Defendants "Argue That Plaintiff … Cannot Be Considered Jewish Because His Mother Is Not Jewish"


From Gulitz v. DiBartolo, a 2010 decision by Judge Cathy Seibel (S.D.N.Y.), but one that was just posted on Westlaw (such delays often happen for district court decisions that aren't published in the paper volumes):

Plaintiff alleges that various discriminatory remarks and actions have been directed at him by his co-workers over the course of his employment at the Highway Department…. According to Plaintiff, Curry has referred to Plaintiff as a "fucking Jew" a dozen times and a "dumb Jew" approximately a dozen times, and Bischoff has referred to him as a "fucking Jew" on a dozen occasions and a "dirty Jew" on less than a dozen, Plaintiff also alleges that other co-workers (aside from Defendants) made derogatory comments such as "shut up Jew" or "my little Jew friend." …

As a threshold matter, Defendants argue that Plaintiff cannot prevail because he is not Jewish, and therefore, not a member of a "protected class." It is undisputed that Plaintiff's father is Jewish and his mother Presbyterian. Defendants, relying on the affidavit of a Rabbi, assert that to be considered Jewish one must either be born to a Jewish mother or officially convert. They argue that Plaintiff, therefore, cannot be considered Jewish because his mother is not Jewish and he has neither converted nor practiced the Jewish religion.

It is not the Court's place to opine on how various Jewish sects define the requirements for "being Jewish." There is certainly no reason to believe that Plaintiff's co-workers applied such a limited definition. What is relevant is that Plaintiff identifies himself as "of Jewish heritage"—an assertion fully supported by the fact that his father is Jewish. That Plaintiff does not practice the Jewish religion does not prevent him from being of Jewish heritage—that is, a descendant of those who did so practice—or from being discriminated against on account of the religion of his forbears.

Defendants provide no legal authority for the proposition that a Plaintiff whose father, but not mother, is Jewish, and who was allegedly discriminated against on that basis, does not fall within a protected class. Absent case law to the contrary, I find that Plaintiff's father being Jewish is sufficient to place him in a protected class.

Anti-Semites have generally not been much detained by subtle distinctions about who qualifies as a Jew under traditionalist religious definitions. American law likewise doesn't draw such distinctions (especially since doing so would require choosing between the Orthodox view and the Reform view).

UPDATE: Commenter Eric VonSalzen points out this is a new illustration of chutzpah: You call someone a "fucking Jew," and then when he sues, you move to dismiss on the ground that he actually isn't Jewish ….