Chutzpah or Stupidity?

The Yiddish word “chutzpah” is difficult to translate into English because Yiddish is a nuanced language, with many words that carry several shades of meaning as well as significant emotional content.  In English, chutzpah is usually understood to mean audacity (positive) or arrogance (negative).  Other English near-synonyms include brashness, brazenness, gall, nerve, temerity. Imagine, then, how much chutzpah it would take to call someone a f***ing Jew and then, when he sues, move for summary judgment on the ground that he actually isn't Jewish.

Well, this actually happened.  Gulitz v. DiBartolo is a 2010 decision by Judge Cathy Seibel (SDNY) that was just posted in Westlaw at https://www.courtlistener.com/recap/gov.uscourts.nysd.322171/gov.uscourts.nysd.322171.55.0.pdf.  (Such delays often happen for district court decisions that aren't published in the hardcover volumes.)  Judge Seibel denied the motion with respect to the plaintiff’s claim of a hostile work environment in violation federal anti-discrimination law (Title VII of the Civil Rights Act):

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 “f***ing Jew” a dozen times and a “dumb Jew” approximately a dozen times, and Bischoff has referred to him as a “f***ing 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.

 

For those who are unfamiliar with the longstanding intra-Jewish debate about “who is a Jew,” suffice to say that Orthodoxy requires matrilineal descent or an Orthodox conversion; Reform accepts patrilineal descent if the child receives a formal Jewish education, has a bar or bat mitzvah, self-identifies as a practicing Jew, etc. (which means that even under the Reform standard, the plaintiff was not a Jew); and the Conservative world is in ferment, with many rabbis make their own decisions regarding patrilineal descent on a case-by-case basis.  (If you’re interested in details, there’s an excellent collection of essays on this subject at https://www.fjmc.org/sites/fjmc.org/files/documents/rabbi_simon/The_Elephant_in_the_Room_Conservative_Judaism_and_the_Patrilineal_Question_Jan-2017.pdf.)  Judge Seibel wisely recognized that it was not the court’s job to determine whether the plaintiff qualified as a Jew *for religious purposes* -- particularly since, as she pointed out, the defendants’ treatment of the plaintiff demonstrated that they had no interest in fine distinctions about “who is a Jew” (as, indeed, no anti-Semite ever does).  Rather, the question was whether the plaintiff’s self-identification as a person “of Jewish heritage” (which was perfectly true) made him a member of a protected class *for federal anti-discrimination law purposes* -- and the court properly found that it did, particularly since he was discriminated against for that very reason.

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