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Discrimination

If Companies Set Up Ethnic Affinity Groups for Employees, Must They Also Set Them Up for Jewish Employees?

Yes, argues the Brandeis Center in a letter to Microsoft.

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From the letter:

We write on behalf of Jewish employees of Microsoft who are also members of the Louis D. Brandeis Center Coalition to Combat Anti-Semitism ("the Coalition") to explain why Microsoft's refusal to establish a Jewish Employee Resource Group (ERG) alongside its existing network of ERGs has resulted in distributing very real professional benefits and advantages on the basis of ethnic or racial identity, while denying these benefits to Jewish and other employees. Providing all employees equal access to professional benefits and opportunities, including Microsoft's Jewish employees, is the right thing to do and is compelled by various federal and local anti-discrimination statutes. Moreover, by denying Jewish employees the very real advantages that Microsoft claims its ERGs bestow, Microsoft has allowed anti-Semitism to fester at Microsoft.

Microsoft's refusal to acknowledge its Jewish employees' right to an ERG seems to stem from a mistaken pigeonholing of Jewish identity as merely "religious," a category of identity that Microsoft excludes from its ERG program. In fact, Jews are a people with a shared ethnic and ancestral heritage. Irrespective of any shared creed or belief in a deity, Jews share a common lineage, history, culture, and language(s). This is the dictionary definition of ethnicity. Jews who never attend synagogue, observe Jewish holidays, practice Jewish religious rituals, or even believe in the religious tenets of Judaism are still ethnically Jewish, an understanding that is widely supported in academic literature and surveys of Jewish American life.

More importantly here, the law recognizes that Jewish identity isn't protected from discrimination based merely on its religious character, but also on its shared ethnic and ancestral heritage (including where protections based on race incorporate ethnicity).

Microsoft's ERGs share common features of ERGs at most Fortune 500 companies. They are employee-led and driven, so that topics of conversation and action come from the employees themselves based on their lived workplace experiences. They connect employees to company  leadership, making it easier to collectively communicate broader workplace equity and inclusion concerns to those with the power to do something about them. They allow employees to represent and express themselves on their own terms, both to corporate leadership and to their colleagues. They facilitate corporate charitable giving to organizations that do work in their communities. And they foster networking and career advancement within the company.

In short, Microsoft's ERGs are a material "term and condition" of employment for Microsoft's workforce and distribute valuable benefits on the basis of identity.

Jewish Microsoft employees are no less deserving or in need of an ERG than other ethnic groups at Microsoft. Currently, Jewish (and other) Microsoft employees are denied various benefits of Microsoft employment:

  • Unlike their Black colleagues in the "Blacks at Microsoft" ERG, Microsoft's Jewish employees are denied the opportunity "to develop[] and strengthen[] a strong network of [Jewish] leaders at Microsoft which enhances Microsoft's diverse and inclusive culture, and assists in our mission of empowering customers to achieve more."
  • Unlike their Asian, Asian American, and Pacific Islander colleagues in the "Asians at Microsoft" ERG, Microsoft's Jewish employees are denied the opportunity to "bring[] together employees across the company who are dedicated to enhancing Microsoft's diverse and inclusive culture to support all individuals who self-identify as" they do.
  • Unlike their Hispanic and Latinx colleagues in "Hispanic and Latinx Organization of Leaders in Action (HOLA)" ERG, Microsoft's Jewish employees are denied the benefits of an ERG that "provides employee community space, helps inspire future employees and advances the careers of current ones" and which "also serves as a resource to communities and organizations worldwide."
  • Unlike their Indigenous colleagues in "Indigenous at Microsoft" ERG, Microsoft's Jewish employees are denied the opportunity to "foster[] [Jewish] awareness and belonging, building community through sharing knowledge, and integrating [Jewish] traditions and values into our Microsoft culture" and "recruit and retain [Jewish] talent across" Microsoft. {https://www.microsoft.com/en-us/diversity/inside-microsoft/default}

Instead, Jewish Microsoft employees are only permitted to organize themselves as an "Employee Community," a structure vastly inferior to an ERG in multiple ways. Employee Communities receive no funding and only limited support from Human Resources and are not allowed to host educational events, participate in inclusive product design programs, or work with external groups outside of the annual Microsoft Give campaign.

Microsoft has refused to allow its Jewish employees to graduate from a mere Employee Community into a full-fledged ERG because Microsoft has chosen to narrowly define Jewish identity as strictly "religious," contrary to how its Jewish employees choose to define themselves. This is evident in Microsoft trying to shoehorn its Jewish employees into the putative "Interfaith ERG."

An Interfaith ERG, by its terms, cannot represent the interests of a vast number of Jewish Microsoft employees who do not define their Jewish identity based on their religious faith as discussed above. Nor can an Interfaith Network serve its Jewish members' unique professional development, anti-discrimination, and community building needs.

In fact, sadly but predictably, the Interfaith ERG project became yet another forum for anti-Semitism at Microsoft. Jewish employees participating in the development of the Interfaith ERG report, for example:

  • Non-Jewish members of the working group charged with standing-up the Interfaith ERG have stated that the Jewish members "should expect people to blame Jews for what Israel was doing."
  • Members of the working group attempted to make Christian prayers a mandatory opening at meetings.
  • Jewish members were told that they should stop complaining about global anti- Semitism as "Christians and Arabs face more and worse in the world" and that "there were so many countries where Jews were the majority."

This is why, as you must be aware, Jewish employees have "dropped out" of participating in the Interfaith ERG project.

Moreover, Microsoft's insistence on defining Jewish identity inconsistent with its Jewish employees' own self-definition has contributed to an environment that many Jews at Microsoft view as indifferent to anti-Semitism at best and anti-Semitically hostile at worst. Surely a Jewish ERG at Microsoft could have helped Microsoft avoid repeatedly failing to issue appropriate statements condemning rising anti-Semitism similar to its statements concerning other -isms, and failing to recognize important events in the Jewish calendar as Microsoft does for employees of other identities.

It sends a message to the entire Microsoft community that Jewish employees aren't valued when Microsoft refuses to acknowledge Jewish Heritage Month or schedules significant Microsoft community events on major Jewish holidays. For example, the Microsoft 5K, a highlight of the annual Give Campaign, has been scheduled on Rosh Hashanah or Yom Kippur for multiple years. Jewish employees have raised this as an issue preventing their participation, but this did not change until 2025, when it was rescheduled to the summer to benefit intern participation. A Jewish ERG would afford Jewish Microsoft employees the same opportunity for consideration of these basic indicators of acceptance and worth.

It is no wonder, then, that widespread anti-Semitism within Microsoft has erupted since October 7. This includes anti-Semitic graffiti on campus, inappropriate speakers hosted by other Microsoft employee networks, public protests at Microsoft's 50th Anniversary celebration, and anti-Semitic comments on Microsoft's internal chat platform after the October 7 massacre, such as:

  • "From the river to the sea, Palestine will be free"
  • Referring to Palestine as "the occupied territory of Palestine," and the Israeli Defense Force as the "Israeli Occupying Force," both inaccurate and inappropriate
  • Offensive and absurd accusations that Israel is an apartheid state
  • Denying Jews the fundamental right to self-determination
  • On the Viva Engage internal messaging platform, posts about Microsoft's business and the company itself received multiple negative comments about Israel and the conflict and were not removed.

And because Jewish Microsoft employees lack the "communal" mechanism of an ERG to address anti-Semitism that other employees with ERGs have, anti-Semitism persists at Microsoft. Is it not obvious that the inability of Jewish employees to bring in speakers and conduct programming and training on anti-Semitism in the workplace, as other ERGs have been able to do concerning the discrimination they face, has severely hamstrung efforts, such as they are, to combat anti-Semitism at Microsoft?

The funding, recognition, and institutional support that Microsoft provides to its ERGs is extraordinary. Microsoft is boastful of the professional support and advancement opportunities that it provides its employees of these various ethnicities and shared ancestries.

Microsoft's Jewish employees are every bit as deserving.

That is why the U.S. National Strategy to Counter Antisemitism, released in 2023, expressly calls on employers to "support Jewish employees by promoting employee resource groups, including for Jewish staff." Microsoft needs to heed the government's call, and follow the law, and recognize its Jewish employees' right to establish an ERG on the same terms and conditions as other employees at Microsoft based on their ethnicity or shared ancestry. If other major American corporations can recognize a Jewish ERG, such as Meta, Salesforce, and Squarespace, to name just a few, so can Microsoft.

It's time that Microsoft offers its Jewish and non-Jewish employees every opportunity that is provided to any worker to establish within Microsoft's current network of ERGs. Jewish and non-Jewish employees must be provided ERGs on the same terms and conditions as other employees at Microsoft regardless of their ethnicity or shared ancestry. It's the right thing to do, and it's the law.

We would appreciate the opportunity to meet with you to discuss this issue. In any event, we need to hear back from you by May 24, 2025, or we will take legal action to vindicate Microsoft's Jewish employees' rights.

I can say that some cases treat Jewish as a national origin category—or even, for historical reasons, a racial category—covered by antidiscrimination law. Indeed, much hostility to Jews focuses on their ethnicity, applying equally to secular Jews and religious Jews; such ethnic discrimination is indeed forbidden. Whether this antidiscrimination rule extends to employers' provision of ethnic and racial affinity groups, and the various intangible (but potentially significant) benefits that membership in those groups can provide, is a separate matter. It will be interesting to see what Microsoft says, and what courts say if there is indeed litigation.

UPDATE 5/16/2025, 9:57 am: I originally wrote "Meta" in the subtitle rather than "Microsoft"; my apologies for the error.