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

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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 ….

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

  1. Why, Professor, what brings you to the wrong side of the Reason tracks?

    Anyway, now I know where Cartman is working.

    1. This aggression will not stand, man.

      1. Up with this we shall not put.

        1. As an example of how much the country has changed, Twisted Sister (that band) was banned from the municipally-owned Bangor (ME) Auditorium “for life” in 1985 because of “their filthy mouthes.”

          Apparently, they’d gotten a little salty with the lyrics at a concert there.

          1. Like they wanted to be in Maine.

            1. Actually, yes.

              Bangor draws from all of Atlantic Canada and playing Bangor meant you didn’t have to deal with customs, foreign taxes, etc.

              Remember that back then, the purpose of the concert was to sell albums and get your music played on the radio — and Maine AM radio went across the gulf to Canada. Big market there.

              1. Actually, no.

                The point of touring is to play in front of your fans, and take their money. Playing live is how musicians make most of their money.
                Drawing lots of Canadians would have helped that goal more if their dollars had been worth a dollar, each.
                as it is, Maine is quite remote, and more of a pain to reach from New York.
                In 1985 the band was at the peak of its popularity, thanks to MTV. If they were blocked from playing in one podunk, they had plenty of others to choose to play.

    2. I don’t quite understand the question. (The Cartman part, I do understand.)

      1. EV,
        Can you explain? I do not get the Cartman part at all. I mean; I get the South Park reference, and get that Cartman is overtly anti-Semitic. But the reference by Cal is that, by you writing this OP, you are acting as Cartman would have. (Right???…if not, then I’m even more confused.)

        But your OP is not all all anti-Jew. It’s either completely neutral, or maybe could be seen as slightly favorable to Jews and those claiming Jewish heritage. I’m not understanding how that gains a comparison to Cartman. Other than his brief flirtation with NAMBLA, Cartman never strikes me as solicitous towards anything remotely liberal or, well, anything remotely Jewish. (Okay, maybe the equally-brief connection to Gingers…but that’s the exception that proves/proofs the rule.)

        1. I thought Cal Cetin’s comment was that Cartman works at the Yorktown Highway Department (which is where all this went down). But maybe I didn’t understand that sentence, either.

          1. Yes, that was my point.

      2. This article first appeared on Reason Magazine’s side of the tracks in their ‘Latest’ category instead, as all the other articles on Volokh, appearing only here.

        1. Oh! That’s funny — I noticed something hinky when the post first went up, but I didn’t know what it was. Looks like somehow it was inadvertently posted on the main Reason side, and then got moved when I updated it slightly.

  2. His willingness to sue people over words is evidence enough that he belongs to a protected class.

  3. Doesn’t US discrimination law also work based on perceived membership in a group, rather than some more formally defined membership criterion?

    1. No, you must have a notarized membership card.

    2. I had the same thought. Even if he had no Jewish heritage at all, if they mistakenly believed he was, then that is enough to make out a claim, assuming he can show harassment.

      1. It’s a big issue with LGBT harassment because a lot of straight men are mistaken for gay. As I understand it, it’s how the statute is written — either “perceived to be” or “is.”

        It’s the “Chuck & Larry” issue — https://www.youtube.com/watch?v=5LKTlIcmA0Q

        1. “a lot of straight men are mistaken for gay”

          That’s your story and you’re sticking to it.

  4. How is calling someone a fucking Jew discriminatory? Not promoting someone for their religion would be discriminatory but not verbal harassment.

    1. I’ve revised the post title to make clear this was a harassment case, but under American antidiscrimination law, harassment claims are treated (whether you think that’s right or wrong) as a form of discrimination claim; the opinion talks about the case as a discrimination case.

      1. Didn’t that come out of the Meritor Savings Bank case and the concept of “hostile environment”?

  5. Stupid defense. If they are not arguing that he was not hassled at work creating a hostile work environment because of his religion they have nothing.

    You put ten learned rabbis in a room and ask them for a definition of “who is a Jew” . You will get ten different answers. So it has been for thousands of years.

    We can argue about if there should be a protected class at all. That would include all of them. Still the defense here does not hold water.

    1. Jewish pro tip; It’s funnier (and more accurate?) to say, “If you put 10 learned rabbis in a room . . . you’ll get 11 answers.”

      Goyem. [sigh]

      1. So it turns out there’s a 1983 D.C. Circuit decision containing an “Opinion for the Court in parts I-V.B” by then-Judge Ruth Bader Ginsburg, a dissenting opinion as to Part V.C by her, and then a concurring statement remarking on a procedural matter. So, yes, that’s one Jew, three opinions.

    2. Isn’t it viewed as Jews being a *race* and not a religion?
      Hence racial, not religious, discrimination.

      1. In your world, people change their race by cutting off a little piece of their genitalia?

  6. He’s not a Jew. He’s a Rachel Dolezal wannabe, pretending to be a Jew. There is good reason for the matrilineal descent rule and, if he were an observant Jew, he’d understand that.

    He’s the kind of person who adopts a black southern accent when hanging out with his black friends, then goes over the line by saying “my niggers.” A fake.

    The judge was wrong. If a person wants to claim the protection for being in a protected class, he should establish he understands and lives as a member of the protected class. There is a shared experience of hardship common to the protected classes that made them worthy of protection. This defendant doesn’t have the bona fides to claim Jewishness.

    1. “This defendant doesn’t have the bona fides to claim Jewishness.”

      Hitler would have wanted to kill him.

      1. Having traveled in America’s deep south, western Mass, Russia, etc. . . . If your last name is Goldberg, Cohen, Bernstein, etc etc . . . you will be treated as a Jew by bigots. Based solely on your dad’s last name.

        I’d like to believe that a person has a legit claim for workplace harassment if she’s called “fucking Jew” constantly at work, regardless of her actual religion or ethnicity. But I’d feel the same way about someone straight being constantly ridiculed as a “fucking fag” at their workplace.

        I think I’d have a different reaction to harassment outside the workplace, where I presume I can leave and hang around with a different class of friends. But at work? I can totally see intolerable harassment being based on a completely false premise. (It might even be more harmful or hurtful in those circumstances.)

          1. Sid Storch: I’m not sure “Jew eat?” is quite apropos here — isn’t that a reference to either taunts that aim at plausible deniability, or at ones that are entirely imagined? “Fucking Jew” doesn’t quite fit within that category …. Or am I missing something?

        1. Having traveled in America’s deep south, western Mass, Russia, etc. . . . If your last name is Goldberg, Cohen, Bernstein, etc etc . . . you will be treated as a Jew by bigots.

          Those sorts of bigots are everywhere, and in roughly the same % of the local population. I guarantee you that you didn’t need to travel to find them.

          1. “. I guarantee you that you didn’t need to travel to find them.”

            What’s different depending on where you happen to be standing is whether or not the bigots are willing to share their bigotry unsolicited, or ad hoc as you will.

            1. What’s different depending on where you happen to be standing is whether or not the bigots are willing to share their bigotry unsolicited, or ad hoc as you will.

              You mean like your eagerness to display your ignorant geographical bigotry>

              1. Surprise! You don’t know what the fuck you’re talking about.
                You’re probably used to that.

                1. Surprise! You don’t know what the fuck you’re talking about.

                  Correction: You don’t know what the fuck I’m talking about…which couldn’t possibly be more obviousl

                  1. “Correction: You don’t know what the fuck I’m talking about”

                    Right. I don’t know what the fuck you’re going on about. Tell me more about my ignorant geographic bigotry>.

    2. He can be a Jew if he wants to. It’s just a religion of his choosing.

      The day that all choices are protected from discrimination will be the day you can’t choose because it’s a discriminatory action.

      1. He can be a Jew if he wants to. It’s just a religion of his choosing.

        That’s correct as far as American law works; it’s not correct as far as Judaism works.

        1. So Jews apparently discriminate against each other on the basis of their DNA.

          That would mean that to Jews, their religion is a birth right.

          That demonstrates how dangerous their beliefs are.

        2. That’s correct as far as American law works; it’s not correct as far as Judaism works.

          Only if you’re restricting “Judaism” to Orthodox/Conservative Judaism. Reform, Reconstructionist and Karaite Judaism all recognize religious conversion as making one “Jewish”.

          1. Only if you’re restricting “Judaism” to Orthodox/Conservative Judaism. Reform, Reconstructionist and Karaite Judaism all recognize religious conversion as making one “Jewish”.

            Um, what? Orthodox and Conservative Judaism also recognize religious conversion as making one Jewish. What none of these movements recognize is being a Jew simply by wanting to be one and choosing to be one.

            1. What, to you, is the difference between “choosing to be Jewish” and “conversion”?

              1. The former is impliedly — certainly as far as the neo-Nazi here is using it — unilateral, while the latter is not.

            2. Dammit, Nieporent…now you’ve forced my to agree with a Pollock post.

              I will cop to a case of imprecise wording on my part. I should have used more qualified versions of “conversion” like “informal conversion”, “conversion by a non-orthodox institution”, etc. It’s actually a bit of an inconsistent mess from sect-to-sect.

              1. Oh noes. Once reality seeps into the bubble, the magic leaks out.

    3. The fun (stupid) thing about the matrilineal descent rule, is that:

      1. Ashkenazim have Levantine Y-DNA haplogroups but Northern European mtDNA haplogroups. As a people the Ashkenazi came into being when Jewish men took European wives. By the rules Ashkenazi wouldn’t be Jewish.
      Mizrahi and Sephardic on the other hand have Levantine markers on both their Y-DNA and mtDNA.

      2. It wasn’t until the Mishnah around the 2nd century that the idea of matrilineal descent really came to the fore in the concept of Jewishness. Pushed further in the 500’s in the Talmud.
      This is 1,500 years after Moses.

      3. Karaite Judaism doesn’t follow it. Nor do Reform or Reconstructionist (Reform is basically LARPing Jewishness though).

      4. Ruth, the ancestor of King David, was a Moabitess, and if David wasn’t Jewish, nobody is.

      1. 1. Ashkenazim have Levantine Y-DNA haplogroups but Northern European mtDNA haplogroups. As a people the Ashkenazi came into being when Jewish men took European wives. By the rules Ashkenazi wouldn’t be Jewish.

        Um, unless there were, you know, conversions?

        1. Kinda far back to ask.

          1. Surely God knew. Who else needs to?

      2. Well, here’s a fun fact: Deuteronomy 23:3 excludes Moabites from “the congregation of the Lord” “even to their tenth generation forever”. So, whether or not they were technically Jewish, neither David nor Solomon were eligible to enter the congregation of the Lord because each of them was within ten generations of Ruth the Moabitess. And yes, that would be the same Solomon who built the temple in the first place.

        In fact, David was doubly ineligible to enter the congregation because of Deuteronomy 23:1 prohibition on bastards entering the congregation for ten generations. He was exactly ten generations removed from Phares, son of Judah, who was conceived out of wedlock in what Judah thought was a fling with a prostitute. See Genesis 38 for the full details.

        I seriously doubt anyone ever stood in the door and told the King of Israel to get out, but it’s an interesting historical point.

        1. “In fact”

          From Genesis?

          That’s like “in fact, John Blutarsky became a United States Senator while Niedermeyer was killed by his own troops in Vietnam and Marmalard was raped in prison after serving as a Nixon aide.”

          1. Within the paradigm of Animal House, that stuff all happened. Within the paradigm of Hansel and Greek, the witch really did have a gingerbread house. And within the paradigm of the Bible, the facts reported in Genesis actually happened.

            Doesn’t mean I believe any of it. But having a conversation that assumes a paradigm is a legitimate exercise.

            1. Gretel, not Greek. Frigging auto correct

              1. Hansel and (the) Greek sounds like really bad fan fiction ala Fifty Shades.

            2. “Within the paradigm of Animal House, that stuff all happened. ”

              Depends on whether or not the TV show was/is canon.

        2. The Talmud has an explanation for why that verse doesn’t apply to Ruth, although right now I don’t remember what it is.

          1. I’d be very interested to hear what that explanation is if you or anyone else here happens to think of it.

        3. In fact, David was doubly ineligible to enter the congregation because of Deuteronomy 23:1 prohibition on bastards entering the congregation for ten generations. He was exactly ten generations removed from Phares, son of Judah, who was conceived out of wedlock

          Note that “conceived out of wedlock” is indeed the definition of “bastard,” but is not the definition of “mamzer.”

      3. ” Ruth, the ancestor of King David, was a Moabitess, and if David wasn’t Jewish, nobody is.”

        Isn’t the book of Ruth considered to be fiction by modern scholars?

        1. Modern scholars? Not welcome at the Volokh Conspiracy.

        2. As opposed to what, Genesis?

          But I am pretty sure I can unequivocally say, yes. Yes, the Book of Ruth is considered fiction by modern scholars.

          1. The first five books are attributed to Moses, and the faithful take them as accurate history. Other books are attributed to others and may or may not be taken as history. Some, for example might be fictional stories to illustrate particular points of the faith.

            Many, many years ago, I went to university with a woman who was a Religious Studies major. What little I know about other people’s religious dogma comes from that. I got clear of that, eventually, and all it cost me was thousands of dollars.

            1. “and the faithful take them as accurate history”

              Our world might be a better place had Star Wars or Star Trek been written many centuries ago and the Bible, Torah, Koran, and similar works been written during the 1950s and ’60s.

              1. You mean like “Dianetics” was?

    4. “He’s not a Jew. He’s a Rachel Dolezal wannabe, pretending to be a Jew.”

      Betcha he’s doing it for the jokes.

      1. More proof of the brilliance of “Seinfeld.” Any show that you quote from (and people immediately get) 20-25 years later indicates its timelessness.

        1. 20-25 years later

          Pffffft. Try 53 years.

          “Lucy! You got some ‘splainin’ to do!”

          1. Lucy, were you hanging out with the Communists?

            Oh, Ricky, YOU’RE the Cuban!

    5. If he were an observant Orthodox Jew, he might share your views. But American law doesn’t prefer Orthodox understandings of Judaism over Reform understandings of Judaism. As to a shared experience of hardship, employment law treats being called a “fucking Jew” at work as a hardship, and the plaintiffs seems to have experienced that.

      1. Does it prefer any? I don’t particularly consider the Westfield Baptist Church to be Christians, but don’t they have a right to call themselves that?

        1. That’s for God to judge, when He gets around to it.

    6. You fulfilled the proprietor’s wish, m4019597. If he does not thank you for that, please accept this gratitude on his behalf.

    7. But this religious doctrine issue, and your opinion on it, is simply irrelevant to civil discrimination law.

  7. He can be a Jew if he wants to. It’s just the religion he chooses.

    The day that all choices are protected from discrimination will be the day all choice is illegal because choosing is a discriminatory action.

    1. He might choose it, but he may not be accepted in.

      1. Accepted by whom? Is there some official registry of Jews?

        1. Just a listserv and an online poll app.

            1. “A listserv and an online poll app”? No, that’s not a lie; it’s a joke.

              1. The comment you replied to wasn’t.

                Are you insincere or a liar?

                1. I think it was a joke, or at least not a serious question.

                2. Rob Misek: You found me out! I am an evil, deceitful individual, but I have exceptionally rare flashes of decency and honesty, and I feel one coming on. Let me tell you, just this once, the absolute truth:

                  I sometimes say and write things that are competely false. Indeed, the more clearly false they are, the more I enjoy saying them. I don’t tell anyone they’re false, no! Instead, I expect “reasonable people” — under my own, extremely subjective definition of “reasonable” — to grasp that those statements are clearly false. And to hell with the rest of my readers, who will be buried in a morass of deceit!

                  Not only that, but sometimes — just for fun — I read whole books full of things that are complete falsehoods. Those things never happened! Indeed, the people discussed in the books often never existed! The same is true with videos; I often watch ones that are cunningly faked, not factually accurate at all.

                  Not only do I read and watch these works, but I sometimes recommend them to other people, who will be just as deceived by them as I am. Most shameful of all, my two sons, my own flesh and blood, whom I claim to “love” — I have sometimes persuaded them to read whole books and watch whole videos full of the most utter, unmitigated falsehoods!

                  Now you might have thought that I’ve discussed the very depths of my degradation, but I have not yet, for I have the most shameful of all things to admit: Some of those books and those video programs — the ones completely full of false statements — were … wait for it … wait for it …

                  written by Jews!

                  1. Fill your boots Kol Nidre boy.

                  2. I thank my god for the truth that exposes lies. God is truth.

                    Jews tell yours that you’re planning to lie, coerce and that you should be accepted in advance for it.

                    That’s the difference between Christians and Jews.

                    1. The difference between Jews and Christians is that one group is waiting for their Messiah (to show up), while the other group is waiting for their Messiah (to come back).

                    2. Who are you, and where did you come from?

                    3. “ Who are you”

                      Asks the anonymous dipshit too cowardly to stand up and be recognized for what you say.

                    4. My name is Jordan Walter, and I stand by what I say.

                    5. You didn’t until I called you out.

                      The next time you use “librarian” know it.

                    6. You still have some explaining to do.

                    7. Okay, Rob’s funny.

                      “The next time you use “librarian” know it.”

                    8. Rob Misek, your pointless comments suggest a bias against Jewish people.

                    9. Are you able to be enlightened?

                      Do you value truth as discerned by intelligence, honesty, logic and science?

                      You are only capable of enlightenment if you answered unequivocally “yes”.

                      If not, don’t waste my time.

                  3. Really? What’s on your mind?

                3. OMG. Seriously Rob? Is that Sam or Wuz in drag?

                  1. OMG. Seriously Rob? Is that Sam or Wuz in drag?

                    Nice try, but I’ve never labeled an obvious joke as a lie.

                    1. Really, Wuz?

                    2. Really, Wuz?

                      Really. I know that these things are difficult (likely impossible) for you to keep straight. Being the pathological liar that you are you probably don’t even know the difference.

                    3. “‘OMG. Seriously Rob? Is that Sam or Wuz in drag?’

                      Nice try, but I’ve never labeled an obvious joke as a lie.”

                      Notice what gets denied here.
                      There’s no denial of being in drag.

                    4. “Christians who demonstrate repentance may ask forgiveness for past sins.”

                      So can the ones who don’t demonstrate any such thing.

        2. There is in Israel, where these issues are very serious matters. There is one definition for purposes of entitlement to citizenship, another, stricter one to be able to marry.

          1. Jews apparently discriminate against each other on the basis of their DNA.

            So to Jews, their religion is a birth right.

            That explains how meaningless their beliefs are and how they treat Palestinians in the land they stole and renamed as the apartheid shitshow called Israel.

            1. So don’t go.

          2. When your religion is a birth right, what do you need god for?

            1. You seem insecure.

              1. Haha

                You act like a hypocrite.

                1. I am not a hypocrite. Why are you calling out Jews based on assumptions?

                  1. What assumptions are you referring to?

                    1. “Religion is a birth right” is a theological claim. The theological component of an ethnoreligious group might maintain that all members of that ethnicity are bound by a theological covenant, regardless of personal belief. What some members of the ethnoreligious group believe about all members of the ethnoreligious group, however, says nothing about what all members of the ethnoreligious group believe about themselves. Some members of the ethnoreligious group might agree or disagree with the beliefs, customs, or traditions of any other member of the group, including what constitutes a member of the group. Irreligious members might participate in religious practices as a cultural experience rather than a theological experience. The blurred lines are most likely the nature of ethnoreligious groups, of which there are many. To try to claim hypocrisy by playing the beliefs and practices of some against the beliefs and practices of others is wrong and bigoted.

                    2. Many of the comments here agree with your assertion that “faithful” Jews discriminate against each other based on their DNA or lack of birth right.

                      It takes a pretty fucked up person to want to join that religion of bigotry.

                    3. Ironically, “joining” Judaism involves conversion of a non-Jew.

                    4. Because it’s considered a birth right.

                      Who’s the bigot?

                    5. Look, Judaism, like many other groups, has inter group affinity. If you value your own children over someone else’s children, that doesn’t make you a bigot. If you value your biological children over your adopted children, then you might have a point.

                    6. My point is that it’s a fucked up religion of bigoted liars.

                    7. There is no point to hurling insults at a group of people that have done nothing wrong. Does it make you a racist if your parents are both white, and not inter-racial?

                    8. And where does “liars” come from? Are you hearing voices?

                    9. Plenty wrong.

                      Here is the Kol Nidre text.

                      The holiest Jewish prayer on the holiest Jewish day is a plan to lie and a demand for acceptance.

                      “All vows, obligations, oaths, and anathemas [curses]which we may vow, or swear, or pledge, or whereby we may be bound, from this Day of Atonement until the next we do repent. May they be deemed absolved, forgiven, annulled, and void, and made of no effect: they shall not bind us nor have any power over us. The vows shall not be reckoned vows; the obligations shall not be obligations; nor the oaths be oaths.”

                    10. The attack on Kol Nidre has been a common anti-semitic trope for centuries.

                    11. Yeah and the defence has been the source of “stupid fucking Jew”.

                      Don’t Jews believe that god knows everything, including what they’re going to do?

                    12. Don’t Catholics get forgiven every week? Same thing.

                    13. “My point is that it’s a fucked up religion of bigoted liars.”

                      Somebody’s pissed off they wouldn’t let him join the club.

                    14. There is no similarity.

                      Christians who demonstrate repentance may ask forgiveness for past sins.

                      The Kol Nidre is arrogant Jews saying “Hey god, we plan to sin as much as we want and we expect no repercussions”.

                    15. Ostensible adults arguing over fairy tales.

                      Always a treat.

                    16. Human behaviour is real dipshit.

                    17. “The Kol Nidre is arrogant Jews saying “Hey god, we plan to sin as much as we want and we expect no repercussions”.”

                      You are again making false assumptions of bad faith. Yom Kippur is a day of atonement and repentance and humility. If Jewish people were trying to use the above in a court of law, then yeah, that would be pretty arrogant. However, we are instead talking about theological arguments about the soul. In particular, Judaism seems like a very technical religion, and would ascribe “Kol Nidre” not to arrogance, but to a desire to apply the procedure of forgiven of sin in a thorough manner.

                    18. “Who’s the bigot?”

                      Appears to be you, Rob Misek.

                    19. Planning to lie is planning to coerce for personal gain, there’s nothing theological about it.

                      The arrogance speaks volumes to the stupidity of Jews.

                    20. “The arrogance speaks volumes to the stupidity of Jews.”

                      But mostly it speaks to the stupidity of you.

                    21. For the benefit of everyone else here, I will just point out that Misek is misrepresenting what Kol Nidre is. (There’s no point in explaining it to Misek, because a quick google shows that it’s almost certainly a malicious misrepresentation; he’s a neo-Nazi holocaust denier.)

                    22. But how do you know he is a Neo-Nazi holocaust denier?

                    23. But how do you know he is a Neo-Nazi holocaust denier?

                      Strictly speaking, I don’t. All I know is that someone posting under the handle “Rob Misek” has posted things that a neo-Nazi holocaust denier would post.

                    24. I posted the text of the Kol Nidre and demonstrated how shallow and ridiculous the Jewish “explanation” is for it.

                      What’s your problem? Is it that I don’t hear violins when holding Jews accountable for their actions?

                      The fact is that none of you review and consider the evidence that soundly refutes the false holocaust narrative.

                      Nazi is your trigger for your brainwashed bogeyman story. I have never identified with it myself.

                      When it is no longer a crime in every nation where it allegedly occurred, objective forensic analysis will demonstrate for everyone that the holocaust is a lie.

                      Jews and their accomplices will be held to account.

                    25. It has now be properly established that Rob is a holocaust denier. It has not yet been established that he is a Neo-Nazi.

                    26. I’ve reviewed the evidence that bigots by definition refuse to.

                      I’ll be clear about the bullshit Jewish explanation for the Kol Nidre.

                      Ostensibly, god knows everything including what your going to do before you do it.

                      How can the Kol Nidre be about lies to god when lies can’t work on god? Duh.

                      Lies only work on people who can be coerced by the misrepresented authority of truth.

                      So shove that bullshit Jewish explanation where the sun don’t shine.

                    27. “I’ll be clear about the bullshit Jewish explanation for the Kol Nidre.”

                      I’m sure you’ve convinced a lot of people. Tons. Such a debater you are.

                    28. When it comes to choose my expectations are low because it takes honesty and intelligence

                    29. When it comes to Jews my expectations are low because it takes honesty and intelligence to recognize truth

                    30. Vows, and obligations, and oaths are about promises to do or not do something. There’s nothing there that says “it is ok to lie”

                    31. I can’t tell if your problem is honesty or intelligence.

                      Vows not being vows is saying you will do something then not doing it which is lying.

                    32. Lies are knowingly made, while oaths, obligations, and vows are made and then are a going concern that may never come to resolution. Yom Yippir, as I understand it, is about clearing out the “liabilities” side of the moral balance sheet. Maybe you should talk to a rabbi.

                    33. Yeah, lying is a moral liability and the Kol Nidre is about clearing that up in advance.

                      So all you lying ability is squared up with god for the coming year. Even though lying doesn’t work on god.

                      So lies only work with people. If you think you’re cleared up in advance for
                      lying to anyone else you’ll need more than violins.

                    34. I’m pretty sure the only oaths, obligations, and vows (it says nothing about lies, but you’ll never remember that because you seem obsessed with lies) that are covered are those broken inadvertently or some lapse not having to do with blatant disregard.

                    35. If you’re pretty sure, it’s because you can’t comprehend that it actually says “ All vows, obligations, oaths”.

                      Do you know what “All” means?

                    36. It is impossible to sincerely repent in bad faith.

                    37. I agree.

                      It’s also impossible to lie to god.

                      So the Kol Nidre can only be a ridiculous prayer that could only intend to make stupid Jews feel better about lying to other people in the coming year.

                    38. Between now and my death, I will have told at least one lie. It is not something I am proud of, and am actually quite ashamed. Say I were a religious Jew who believed the Kol Nidre absolved me of that shame. That doesn’t mean I should stop trying to always tell the truth. If I did stop trying, then my repentance would not be sincere.

                    39. It’s really not that different from believing Jesus will forgive all your sins. Indeed, Judaism and Christianity both include the concept of deathbed confession

                    40. “When it comes to Jews my expectations are low because it takes honesty and intelligence to recognize truth”

                      How would you know?

                    41. No there is no similarity.

                      Sincere repentance can only occur after transgression with the decision to not do it again.. That is when people can be forgiven.

                      The Kol Nidre is about future transgressions. It is inherently insincere to demand forgiveness in advance and to suggest repentance can be in advance of transgressing again and again.

                    42. “I can’t tell if your problem is honesty or intelligence.”

                      You have no experience with either.

                    43. You are confusing free will with pre-destination. God has determined the future, and your future sins will continue to exist no matter how hard you try to avoid them. Whether these sins are forgiven before, during, or after the sin occurs makes no difference in a pre-determined world.

                    44. “your future sins will continue to exist no matter how hard you try to avoid them.”

                      Only if you’re mentally ill.

                      Is that your new “Jewish explanation” for the Kol Nidre?

                    45. Predestination has a long and storied history in Christianity, actually. According to Calvinism, God created people that are going to heaven and people that are going to hell. It is all in God’s hands.

                    46. So the Kol Nidre and Judaism are about predestination.

                      Good and evil are predetermined.

                      How you behave is god’s responsibility.

                      Why does god want Jews to be so stupid?

                    47. I would say it is both about free will and pre-determination being true at the same time. Like with the Greek Gods, some of our decisions are orchestrated ahead of time by divine intrigue, while at other times God gives us an opportunity to make a decision of our own. So some things are pre-determined and some things aren’t, but your religious practice needs to be structure to address both eventualities.

                    48. It’s sort of like if you put a five year old in a room with a marshmallow and tell that child that if they eat the marshmallow they will burn in hell for eternity. No child is able to resist the marshmallow forever, so the fate is sealed ahead of time. However, the child still makes a free choice to eat the marshmallow, and is damned the hell.

                    49. What a load of bullshit. By my count you’ve changed your phoney explanation of the Kol Nidre 7 times in this thread.

                      The fact is that the Kol Nidre is a plan to lie to people and an expectation in advance of absolution from god. It is inherently insincere behaviour whether you believe in predestination or not.

                      Jews will always be judged by your behaviour. Why are you such slow learners?

                    50. In the final analysis, yes everyone should be judged by his or her behavior.

                      I don’t understand your deep suspicions. What exactly do you believe is at stake? If someone lies, doesn’t it always catch up to them?

                    51. Lies coerce people to make decisions they wouldn’t if they knew the truth.

                      The corrupt impact of those decisions can change and end lives.

                      It only catches up to the liar when the truth is shared with enough people to bring the liar to justice.

                      The damage done is often irreversible.

                      Stopping people from lying should be legislated. It would change society for the better.

                      Your Kol Nidre would also quickly fall out of favour.

                    52. Enlighten me. Do you have an example?

                    53. Are you ready to be enlightened?

                      Do you value truth as discerned by intelligence, honesty, logic and science?

                      You are only capable of enlightenment if you answered unequivocally “yes”.

                      If not, don’t waste my time.

                    54. You forgot reason, but yes I am prepared.

                    55. Good, then you’re welcome in the church of Misek.

                      Here the path to enlightenment is lit with discerned truths. Denying truth is not allowed.

                      Through honesty, intelligence, logic and science we will move from darkness to light.

                      Is there any specific truth that you would like to discern?

                    56. “Good, then you’re welcome in the church of Misek.”

                      No, thank you.

                    57. You’re not welcome

        3. “Accepted by whom? Is there some official registry of Jews?”

          God knows.

  8. The correct choice would have been to punch the motherfucker in the face. That would have ended the abuse right then and there.

    1. If you start punching people in the face at work, this tends to be seen as not conducive to an orderly workplace. It’s usually the punch-thrower who gets encouraged to seek alternative employment.

  9. Interesting. To my mind, it points out the absurdity of ignoring freedom of association, and only a short step from outlawing hate speech.

    If his mother had been a Jew and converted to Christian, would he suddenly not be a Jew? If his mother had converted between children, would the pre-conversion ones still be Jews after her conversion, and would the post-conversion ones not be Jews?

    If the general consensus is that the mother determines who is a Jew (except of course for Hitler’s purposes), and he is not a Jew, then does he have no standing because he is not a member of the protected class? If someone stands up at work, or anywhere, really, and screams about bloody Jews or blacks or Asians (but of course not whites), is his rant only criminal for some of the crowd?

    Can he claim to identify as a member of a rare (size 1, in fact) Hebrew sect where Jewishness depends through the father, does it matter that his father is not a member of that sect, and never was? Could his children claim protected class status because they descended from their father who is a member of that sect? Would it matter if they had converted to Reform or Orthodox or other Jewish sects who descend through the mother?

    How does adoption work in all this? Divorce? Suppose a Jewish husband and wife adopt a kid — is the kid Jewish?

    What if this Presbyterian mother had divorced between conception and birth?

    What if it is discovered 30 years after birth that the husband is not the father, that the wife was sneaking around with non-Jewish co-worker?

    Freedom of association is so much easier.

    1. Perhaps Prof. Bernstein, who tends to enjoy the weeds with respect to who is Black, who is Asian, who is White, who is Hispanic, and the like, will favor us in this context, too.

    2. The Bnei Menashe community of Jews in India is the perfect example to answer your question. They’re collectively Jewish and recognized as such by the Israeli chief Rabbis, but individually must undergo an Orthodox Jewish conversion upon entering Israel to reaffirm they will abide by “modern” religious tenets that evolved since they splintered off 1500-2000 years ago.

    3. According to traditional Jewish law, called halacha, if you were born a Jew, you remain a Jew, even if you convert to Christianity. We’re sorta like the mob in that way. Once you’re in, you can’t get out.

  10. This also demonstrates the racist desire to define the Other as well.

    You also see it in people insisting minorities explain “their culture” or similar when it conflicts with a racist’s internal stereotypes, people obsessing over legal definitions of Latino and so on.

    Good to see the little trolls take a well deserved kick for a change, though.

    1. By “this,” do you mean

      the conduct underlying the complaint

      the decision

      or

      the post (and is predictable precipitate)?

      Thank you.

  11. New definition of “chutzpah”: You harrass and insult someone as a “fucking Jew” and a “dumb Jew” and a “dirty Jew” and tell him to “shut up Jew” and call him “my little Jew friend”, and then when he sues you, you move to dismiss on the ground that he isn’t a Jew.

    As some great statesman might say, Come one, man!

    1. Oooh, good one!

    2. I dunno. What if he had really not been Jewish and everyone knew it? Then the motion to dismiss would be valid, wouldn’t it?

      It seems kind of weird that you can only get in trouble if your insults are true (or at least perceived to be true.)

  12. An entire post on discrimination without a single vile racial slur?

    Must not have involved race.

    1. Just to make clear to others (I’m sure it’s perfectly clear to Arthur Kirkland), the reason this post doesn’t include, say, “kike,” is that the incident didn’t actually involve anyone calling plaintiff that — the coworkers seemed to think “fucking Jew” was vile ethnic/religious slur enough for them. My view: Slurs in quotes, fine; made-up quotes, not so much.

      When a case is about the word “kike,” see, e.g., the post about the Montana group libel case (where one of the tweets was “USA needs a Hitler to rise to power and fix our #economy and i’m about ready to give my life to the cause or just shoot a bunch of #kikes”), then of course I quote that, whether on this blog or when I teach about the case in class. Same when I’m quoting other material, such as this Russian song or this Russian joke (“kike” there is the translation of the Russian “zhyd,” which is much more commonly used in Russia than the English version is in America).

      1. The slur that appears repeatedly — beyond repeatedly — in this blog’s posts and comments is not that one.

        The familiar one already has appeared in the comments, though. As usual.

        1. The familiar one already has appeared in the comments, though. As usual.

          Yes. *sigh* “Rev. Arthur L. Kirkland”. It is ever-present.

        2. Kirkland, if an employee was being called that repeatedly, the same law would apply.

          1. “if an employee was being called that repeatedly, the same law would apply.”

            Is that you wearing your “pretend lawyer” hat or your “pretend educational policy expert” hat?

    2. “An entire post on discrimination without a single vile racial slur?”

      And Arthur Kirkland hasn’t commented on whose asses Republican women have their tongues in. It’s really weird.

    3. An off-topic troll by the Irrev. Kirkland? It must be a day ending in ‘y’.

  13. Do Jews believe that being Jewish is anything more than a choice of religion?

    Do Jews really discriminate against each other’s DNA?

    That would be one fucked up dirty Jew thing to do.

    1. Man, this is one self-hating Jew.

  14. Under the Nuremberg Laws he would have won a one-way train ticket. I have no problem holding anti-Semites to their own standards when judging them.

    I realize the Nuremberg Laws do not apply in the US, although Justice Stevens once massively trolled an affirmative action decision by favorably (and sarcastically) citing to them (this was before he lost his way on the issue).

  15. According to USA Today it is respectful for non-Jews to acknowledge Jewish holidays, so may all the Jews have a happy and sweet new year.

    1. That reminds me of something that came up the other day.

      In those religions which have non-Gregorian (or even non-Julian) calendars, do they count age in Gregorian years or religious calendar years? Only ones I know of offhand are Jewish and Muslim, although I wouldn’t be surprised to find they count years similarly. Well, Mayan, Aztec, etc, but eh.

      1. Religious calendar. The date of a boy’s bar mitzvah (and a girl’s bas mitzvah) is based on the Jewish calendar, not the Gregorian or Julian. (When I say bar or bas mitzvah, I am using it in their original meaning, that they are of the age of religious majority and are now obligated to keep the commandment, not the day for a big party.)

        The difference between Gregorian and Julian calendars is also why the Eastern Orthodox churches celebrate many of the Christian holidays about two weeks later.

      2. Not sure. Below it says Buddha’s birthday is by the lunar calendar, so maybe Buddhism would be an example. Then again, does age continue after reincarnation, or go back to zero?

        https://en.wikipedia.org/wiki/Lunar_calendar

      3. I prefer to count my age in hexidecimals… 😉

        1. So that when someone tells you go F yourself, you can mutter “15, what?”

  16. Man it’s complicated being a Jew.

    1. And it’s not easy being green.

      1. You still angry about it, Dr. Banner?

  17. “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 ….”

    A half-century ago, it was common for everyone to be the target of anti-gay slurs, sometimes from children too young to have any idea what it meant.

    The dividing line in America separates those who look back at that period as ‘the good old days’ and who are still bigoted, and those who have improved American society and rejected superstition-laced bigotry.

    Carry on, clingers. For a bit longer, that is.

    1. What’s your point about my comment, Rev.?

  18. All these comments…and not a single mention of the late great Sammy Davis, Jr.?

    1. He’s dead, Jim.

      1. Uh, yeah…that’s what “late” means, Captain Obvious. What’s your point?

          1. So you have no point. OK.

            1. woosh, woosh.

              1. That’s the sound of the wind blowing unimpeded through both of your ears.

                1. You almost had it, there. You just misidentified the ears.

        1. Dammit, Jim, I’m a doctor, not a magician.

    2. What has two eyes and is black and white and Jewish? Sammy Davis Jr. And Moshe Dayan.

  19. I was, many years ago, at a party where someone accused a gentleman of not being “really Jewish.” The man replied, “I would have been Jewish enough for Hitler.”

    1. Are you saying that Hitler wasn’t as bigoted as Jews?

      1. Are you saying the person who absurdly accused this gentleman was Jewish? ‘Cause I’m fairly sure she wasn’t. (She wasn’t as bigoted as Hitler either, but nevermind.)

  20. Defending lawyer to plaintiff: Yo mama so goy she thinks kugel is a pelvic muscle exercise.

  21. Are catholics a “protected class?” Are Italians? everyone is a protected class and no one is…the laws have to apply equally to everyone (sorry FB and Twitter)…calling people names is grounds to be terminated..what is being called honestly doesn’t matter…

    If you can’t treat a colleague professionally..there is the door.

    1. Titus Pullo: “Protected class” is often used in a confusing way. It’s not that some people are protected by antidiscrimination law, in that they are allowed to sue, and other people aren’t protected. Everyone is protected against discrimination based on race, religion, sex, and other attributes set forth by antidiscrimination law: Catholics against religious discrimination, Jews against religious or ethnic discrimination (as the case may be), blacks against racial discrimination, whites against racial discrimination, women against sex discrimination, men against sex discrimination, etc.

      To be sure, the Court has read antidiscrimination law as allowing certain kinds of race and sex discrimination on “affirmative action” grounds; so the rules may end up being different with regard to discrimination against men or whites than against, say, women or blacks. (I think that’s wrong, but there it is.) Still, whites and men remain “protected classes” in the sense that discrimination against whites or men is often (though not always) prohibited. And, again, likewise against Catholics, Italians, etc.

      On the other hand, mere unprofessional treatment (as name-calling), unrelated to the target’s race, sex, etc., is not legally actionable. Private employers often punish people for such unprofessional treatment, but they aren’t legally obligated to do so.

    2. “calling people names is grounds to be terminated”

      You’d think it would be unprofessional and thus worthy of termination but courts had to twist themselves a bit to reach this conclusion in the light of the first amendment. (and the early precedents on the subject of government-as-employer didn’t get it quite right.)

  22. Rob Misek: I hate to break it to you, but many (most?) of the bloggers on this site are (((Jews))). That means, in your view, that we are all liars, completely not to be trusted. This makes it a bit surprising that you would want to waste your valuable time reading such obviously unreliable information.

    But worse — don’t we have a reputation, in your circles, as being especially cunning liars, particularly dangerous precisely because we are fiendishly clever? (Surely give us at least that stereotype!)

    Doesn’t that fill you with some trepidation? What if you let your guard down, and we succeed in deceiving you? What if we plant all these lies in your mind, and you can’t tell which are true and which aren’t? Surely it is dangerous to expose yourself to so much subtle untruth. (And we’re Jewish lawyers, yet! No, wait, I take it that should be “Jew lawyers.”)

    Be honest: Are you really up to it?

    1. Jews are stupid.

      You’re a legend in your own mind.

      It’s fun watching you trip over your lies.

      I dare you to refute anything I say.

      Let the fun begin.

      1. Coming soon from Misek Pictures:

        Springtime for Hitler 2: No More Mr. Nice Guy!

        1. That tripe was written by Jews embellishing their own perversion with the bogeyman of their false narrative.

      2. Plus they control Hollywood, and all the banks.

      3. Boy, Misek. Are you going to have trouble getting a mortgage or a car loan.

        1. Nah

          Never seen a Jew turn away a shekel.

          1. Unless you count that one who overturned all the tables of the money-changers right on the Temple steps…

      4. “Jews are stupid.
        You’re a legend in your own mind.”

        Says the guy welcoming people to the Church of Rob Misek upthread.

    2. You’re already talking over his head.

  23. So if your mother is not black, but your father is, you are not black American?
    So if your mother is not Native American, but your father is, you are not Native American?
    So if your mother is not Asian, but your father is, you are not Asian American?
    So if your mother is not Italian, but your father is, you are not Italian American?
    So if your mother is not Irish, but your father is, you are not Irish American?
    I could go on on an on, but it is all still foolishness.

    1. Jewish is a religion, not a race, and if they want to be bigots and liars that’s their choice.

      They will be judged by their actions, as always.

      1. And you will be judged by YOUR words.

        Gosh, I hope nobody gets the idea you might be a bigot…

        1. I welcome being judged on the truth of my words.

          Something liars fear most, Kol Nidre boy.

          1. As you indicate, idiots fear nothing.

  24. I handled a somewhat similar case when I was practicing. A man claimed that he had been discriminated against by his supervisor on the basis of his race because he was Cherokee Indian. Of course, whether a plaintiff is actually a member of a protected racial class is almost never an issue under Title VII because it’s usually pretty self-evident, but in this case, we had nothing other than the plaintiff’s own assertion that he was, in fact, Cherokee. With the assistance of the Cherokee Nation of Oklahoma, we were able to prove that the plaintiff’s family had applied for, and been denied, federal reparations after the Trail of Tears because his family could “show no connection” to the Cherokee people. Nevertheless, the federal district court held that the suit could proceed if the employer “thought” he was Cherokee.