The Volokh Conspiracy
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Discrimination "Due to Community Complaints" About Person's "Zionist Views" Isn't Based on Race or Religion, Court Holds
From Judge Charles Breyer's opinion earlier this month in Pauker v. Heart Consciousness Church, Inc. (N.D. Cal.):
Plaintiff Michael Pauker is a Jewish musician who contracted with Harbin Hot Springs …, an event venue with lodging, to perform at a Hanukkah concert. After Pauker made a Facebook post in support of Israel, Harbin cancelled the contract, citing concerns with political divisiveness and violence stemming from a community reaction to the post. Alleging that his Zionist beliefs are inextricably tied to his racial and religious identity, Pauker brought an action for racial and religious discrimination against [Heart,] … the owner and operator of Harbin, and Derek Cyr, an individual who purportedly attacked Pauker online and raised issues with his scheduled performance at Harbin….
Shortly after [Pauker entered into the contract, in December 2024], Pauker began to receive messages on social media from a user named Derek Cyr. In 2023, Pauker had made a Facebook post in support of Israel following the Hamas attack on Israel on October 7. Cyr's messages were highly critical of Pauker. Cyr said Pauker played "genocide music" and that Harbin should cancel Pauker. The social media harassment continued on public pages, with accusations of Pauker supporting the death of innocents.
Following Cyr's social media posts, Harbin notified Pauker that it was going to cancel Pauker's performance due to "unforeseen events," such as "severe 'negative feedback' and Harbin's desire to avoid politics and divisiveness, including violence coming from any party." After the cancellation, Cyr messaged Pauker, stating he was glad that Pauker would not be performing and that he would cancel Pauker wherever he went due to his alleged genocidal support. Concerned, Pauker shared the messages with Harbin. Harbin reiterated that the event was cancelled "due to community complaints about [Pauker's] 'Zionist views,'" including Pauker's post regarding October 7. Harbin told Pauker that the complaints were "from community members, including performers and presenters." …
Pauker sued under various federal and state public antidiscrimination laws, and Judge Breyer granted Heart's motion to dismiss. Partly this was because the relevant laws just didn't apply to this sort of relationship—for instance, the court noted (correctly, I think) that state and federal public accommodation discrimination laws didn't apply here because Pauker wasn't excluded as a patron of a place of public accommodation.
Title 42 U.S.C. § 1981, however, has been interpreted as banning race discrimination in all contractual relationships, and as including discrimination based on Jewish ethnicity as a form of race discrimination. And, relevant to that (as well as to the other laws), Judge Breyer reasoned as follows:
All of Pauker's claims require at least racial or religious discrimination to be actionable. But the allegations in Pauker's complaint fail to raise a reasonable inference of such discrimination. To the contrary, the complaint offers an alternative basis for Harbin's decision to cancel Pauker's performance: a severe, negative community reaction. For that reason, among others, Pauker fails to state a claim upon which relief could be granted….
The parties differ on whether Pauker's Facebook post implicates his religion or race. Pauker centers his allegations on his Zionist beliefs—insisting that Zionism is a proxy for Judaism or Jewish racial identity. Heart rejects this argument, contending that Zionism is purely political. The Court notes that the relationship between Zionism and Judaism is "hotly disputed." As this is a motion to dismiss, the Court assumes Pauker is right. But parsing this issue is ultimately unnecessary because Heart is correct that Pauker fails to allege Harbin targeted him because he is Jewish.
The complaint fails to raise a reasonable inference of racial or religious discrimination. Pauker specifically alleges that Harbin told him it was cancelling his performance to avoid "politics and divisiveness, including violence coming from any party." Harbin grounded its decision in unforeseen events and "severe 'negative feedback.'" Pauker alleges that Harbin reiterated it was "canceling the event due to community complaints about" Pauker's Zionism, particularly his Facebook post. Harbin conveyed that the backlash to Pauker was widespread and came from "community members, including performers and presenters." Pauker does not allege that Harbin's stated reasoning was pretextual or that Harbin commented critically on his beliefs or Jewish faith ….
I don't think this reasoning is right. It's well-established that discrimination based on public hostility to someone's religious beliefs is a form of discrimination based on those religious beliefs. (Analogously, refusing to serve black customers at a restaurant because white customers don't want to eat with them is race discrimination, even if it stems just from the owner's concern about public reaction and not any personal hostility to blacks.) The EEOC Guidance: Religious Discrimination puts it particularly clearly, but lots of cases say the same:
Employment Decision Based on Customer Preference
Harinder, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Harinder begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When he inquires, the crew complains that Harinder, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the September 11th attacks. The manager tells Harinder that he has to let him go because the customers' discomfort is understandable. The manager has subjected Harinder to unlawful religious discrimination by taking an adverse action based on customers' preference not to have a cashier of Harinder's perceived religion. Harinder's termination based on customer preference would violate Title VII regardless of whether he was—or was misperceived to be—Muslim, Sikh, or any other religion.
So it may be that the result here is correct, even as to the 42 U.S.C. § 1981 claim, if one thinks that discrimination against Zionists isn't discrimination based on Jewish ethnicity (and thus based on race for § 1981 purposes). But if one goes along with the court's assumption that "Zionism is a proxy for … Jewish racial identity," then I don't think that the Court's rationale—which amounts to "discrimination based on public hostility to Zionists [and thus, by hypothesis, Jews] is OK, because it's not discrimination based on being Zionist/Jewish"—can be sound.
