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"Are You a Jew? … Are You a Zionist?"
Federal judge allows "pattern or practice" claim of discrimination against Jews by coffee shop to go forward.
From yesterday's decision by Judge Susan Illston in U.S. v. Harara:
For purposes of this motion to dismiss, the Court treats as true the factual allegations as stated in plaintiff's complaint and draws all reasonable inferences in plaintiff's favor….
The Jerusalem Coffee House [which Harara owns] is a business establishment open to the general public. The coffee house is located on the premises of the East Bay Community Space, "which regularly hosts events that are open to the general public for exhibition or entertainment …."
According to the complaint, on June 10, 2024, Michael Radice—who is Jewish—went to the East Bay Community Space "for the purpose of viewing the establishment for a fundraising event for his organization." Radice was wearing a dark blue baseball cap with a light blue Star of David and white Hebrew lettering. As he approached the community space from the side where the coffee house is located, a man sitting at a table in front of the coffee house asked, "Are you a Jew?" Radice answered in the affirmative. The man then asked, "Are you a Zionist?" Radice declined to respond.
The complaint alleges that "[t]he man then began shouting numerous accusations at Mr. Radice, including that he was complicit in Israel's military actions in the Gaza Strip following the October 7, 2023 Hamas attacks and guilty of 'killing children.'" As Radice began to walk away, the man stood up and asked, "Where are you going?" The complaint alleges, "Mr. Radice saw another man, whom he later learned was Harara, walk out of the coffee house and speak to the man, and the two went inside."
On August 3, 2024, Radice returned to the East Bay Community Space to attend the fundraiser for his organization. Before doing so, "he entered the coffee shop to purchase a cookie, which he hoped would be seen as a sign of goodwill." He was not wearing the baseball cap he had worn previously. Behind the counter were Harara, the man Radice had previously encountered, and a third employee. Before Radice could place his order, the man from the prior encounter stated, "You're the guy with the hat. You're the Jew. You're the Zionist. We don't want you in our coffee shop. Get out."
Harara asked Radice if he intended to purchase anything and Radice responded that he was only there to make a purchase. According to the complaint, "[o]ne of the employees responded by telling Mr. Radice to 'get out' and gestured to the front door. Mr. Radice immediately left the coffee house." "Harara and the two other employees followed Mr. Radice outside, yelling 'Jew' and 'Zionist' at him. Mr. Radice retreated north on Telegraph Avenue towards 55th Street. When he saw that Harara and the employees were continuing to pursue him, Mr. Radice stepped into the middle of 55th Street and behind a parked car to escape the men." The complaint alleges that "Harara and his employees continued to yell insults and epithets at Mr. Radice, which did not end until Mr. Radice and the board member entered EBCS."
On October 26, 2024, Jonathan Hirsch—who is Jewish—took his five-year-old son to lunch at a hot dog stand located across the street from the coffee house in Oakland. Hirsch was wearing a blue baseball cap with a white Star of David on it. Hirsch's son needed to use the bathroom, and as the hot dog stand does not have bathrooms, staff directed Hirsch to the coffee house. Hirsch was not aware of the previous incidents involving Radice. Hirsch and his son entered the coffee house, Hirsch ordered a coffee, and they then went to the back of the coffee house to use the bathroom. The employee who served Hirsch was not Harara.
According to the complaint, "After using the bathroom, Mr. Hirsch and his son sat down at a table with a chess board in the back of the coffee house and began playing chess." Within minutes, Harara "confronted" Hirsch, demanded to know whether Hirsch was a "Zionist" and whether he was wearing a "Jewish star," and then demanded that Hirsch and his son leave the premises. "At no time while in the coffee house did Mr. Hirsch say anything that would indicate his political beliefs or positions on any issue, including Israel."
Hirsch asked Harara whether he worked there, and Harara then "falsely accused Mr. Hirsch of 'causing a disruption' and 'trespassing'" and threatened to call the police. "While in the coffee house, Harara told Mr. Hirsch, 'You need to leave,' or variations on this demand, at least fifteen times." Hirsch said that he would wait for the police to arrive, and Harara then walked to the East Bay Community Space and approached an employee there (Ms. Don) to ask her help in removing Hirsch. Ms. Don went to the coffee house and "initially told Mr. Hirsch that he should accede to Harara's demand, noting that he had entered a 'Palestinian business.'" Hirsch stated that he believed Harara was discriminating against him because he was Jewish.
Two Oakland police officers arrived and Harara demanded they remove Hirsch and arrest him for trespassing. The officers did not arrest Mr. Hirsch and "[t]he police report for this incident states that 'no crime occurred' and 'this is being documented as a hate incident.'" The complaint states that "Ms. Don later told the Oakland police that Mr. Hirsch 'wasn't trying to start a conflict' and 'was being discriminated against because of his hat.'"
The officers requested to speak with Hirsch outside. According to the complaint, "As they left the coffee house, Harara said, 'Bye bye! Are you a Zionist? Bye bye!' Later, he added, 'I love Jewish people. I love them. I love them. Fuck Israel. Fuck Zionists. Fuck Zionists.'" Harara "continued to spew insults and epithets at both Mr. Hirsch and his young son" including "repeatedly calling Mr. Hirsch a 'bitch,' a 'dog,' and a 'piece of shit.'" "When Mr. Hirsch asked Harara whether he asks every customer whether he or she is a 'Zionist,' Harara responded, 'Yeah, I do.'" The complaint alleges that "Harara does not, in fact, ask all customers if they are 'Zionists.'" Hirsch did not receive the coffee he ordered and paid for.
On June 9, 2025, the United States filed the complaint, alleging that "[d]efendants' actions … constitute a pattern or practice of resistance to the full and equal enjoyment by Jewish individuals of rights secured by Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et seq…."
Defendants moved to dismiss, but the court allowed the case to go forward:
In deciding whether to grant a motion to dismiss, the Court must assume the plaintiff's allegations are true and must draw all reasonable inferences in his favor….
Title II of the Civil Rights Act of 1964 provides that "[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, … without discrimination or segregation on the ground of race, color, religion, or national origin." The Act further provides that, "[w]henever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint … setting forth facts pertaining to such pattern or practice …."
The parties agree that … the government bears the burden of proving "more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts" and must "establish by a preponderance of the evidence that [the] discrimination was the company's standard operating procedure[:] the regular rather than the usual practice." The question here, then, is whether the complaint sufficiently alleges a "pattern or practice" of discrimination against Jewish customers or whether the incidents described in the complaint are too isolated or sporadic to constitute a Title II violation. In their reply brief, defendants clarify that, "[r]ather than arguing that the number of incidents is insufficient, Defendants argue that the alleged incidents are isolated, bizarre, and dissimilar."
Defendants have cited no analogous cases in support of their position that the incidents here are too "isolated" to constitute a pattern or practice of discrimination. The case law indicates that even just a few incidents can suffice to sustain a pattern or practice claim, particularly where the facts support a conscious or purposeful bias against a particular group.
An Eighth Circuit case examining a claim of racial discrimination in housing is instructive. In United States v. Big D Enterprises, Inc. (8th Cir. 1999), the appeals court affirmed judgment entered against an apartment complex owner and his management company following a jury trial. Following an investigation by the Department of Housing and Urban Development, the United States sued under the Fair Housing Act [which is analogous in relevant part to Title VII], alleging that the defendants engaged in a pattern or practice of discriminating against minority housing applicants. At trial, several apartment managers testified that the complex owner "personally instructed them not to rent to black applicants," that he referred to black applicants by a racial epithet, and that he told the managers to tell black apartment seekers that no vacancies existed. There was also evidence at trial regarding three individuals in particular whose housing applications were denied on the basis of their race or the race of their children. The appeals court found that "the government has more than satisfied its burden of proof."
Here, the government has alleged two instances involving explicit discrimination and denial of service to two seemingly unrelated individuals who wore baseball caps bearing a Star of David…. Defendants argue that the allegations here cannot establish a pattern or practice because the complaint alleges only "two isolated, somewhat bizarre incidents[.]" However, defendants also agree that two incidents can constitute a pattern or practice of discrimination and clarify that they do not argue the number of incidents here is insufficient.
Moreover, accepting defendants' characterization of the incidents as isolated and not representative of a broader pattern would require reading facts into the complaint that the United States does not allege. For instance, defendants argue that the Hirsch incident was unlike the Radice incident because Hirsch was told to leave "because he was causing a disruption and trespassing after he had been served, used the bathroom, and played chess." Nowhere does the complaint allege that Hirsch was causing a disruption. Rather, the complaint alleges that defendant Harara "falsely accused Mr. Hirsch of 'causing a disruption' and 'trespassing.'"
Given the small number of incidents involved, this case presents a close call. But at the motion to dismiss stage, the Court must assume that the plaintiff's allegations are true and must construe them in the light most favorable to the plaintiff. Doing so, the Court concludes that the government has sufficiently alleged a pattern or practice of discriminatory conduct at this stage of the case. Whether or not the government will ultimately be able to prove its case is a question for a later day.
Charlotte Lanvers and Max Patrick Lapertosa of the Justice Department Civil Rights Division represent the government.
