The EEOC Is Not Your Friend

US employees are supposed to have legal recourse for workplace harassment based on religion. In reality, these cases are almost impossible to pursue because the Equal Employment Opportunity Commission’s definition of harassment rules out evidence that is indirect or nonverbal. Harassment, according to the EEOC, has to be frequent or severe enough to create a “hostile or offensive work environment” for an employee to take legal action. Incidents that don’t fall under legal protection include “simply teasing, offhand comments, or isolated incidents that aren't very serious.”1

The EEOC guidelines are just plain wrong. Simple teasing and offhand comments, expressed often enough, are harassment and hostility, and they serve to isolate employees. Some of the most effective workplace methods for evading discrimination law are indeed the most indirect ones. Work is sabotaged, the targeted employee is excluded from meetings, and the workload may dwindle to nothing. Without even uttering a directly antisemitic expression or painting a swastika on an office door, a discriminatory workplace can leave the targeted employee confused, intimidated, and shaken up.2

For Jews especially, the legal demand for direct speech is problematic. The far right may intimidate with marches and Nazi symbols, but antisemitic language is coded, not direct. Smart organizations use indirect speech and innuendo to push their employees out. Diversity, Equity, and Inclusion has exacerbated this problem since it often doesn’t include Jews as a targeted minority: “Antisemitism is based on conspiracy theories about Jews being in power, which has resulted in Jews being excluded from DEI strategies despite facing growing rates of antisemitism in the workplace and beyond.”3 The structure of DEI tends to make Jews the targeted white oppressor by default, leaving open even more coded ways to attack.

Under these conditions, the EEOC guidelines leave victims of antisemitism at work without legal recourse. According to Vox and the Wall Street Journal, only 15% of all EEOC-based discrimination lawsuits are successful, despite establishment of the government office under the1964 Civil Rights Act.4 Many cases, in fact, are dismissed despite evidence of direct hostility, let alone indirect speech. For example, a group of workers filed a case in 2006 against Austal USA shipyard in Alabama after discovering eight nooses on the premises and Ku Klux Klan references in the bathroom, in addition to threats against specific employees. Despite overwhelming evidence of harassment, the EEOC left the case unresolved after a year.5

Given this lack of attention to direct forms of harassment, there can be no expectation that circumstantial evidence will be enough to meet EEOC requirements. Take a 2015 case against UPS. Jason Jessup, a black driver located in Uniondale, NY, experienced indirect forms of harassment and eventually, termination:

Jessup filed a complaint with the EEOC in 2015, but the government office took no disciplinary action. When Jessup filed suit two years later, UPS asked the judge to dismiss the case citing precedent that requires a persistent pattern of “opprobrious racial comments.”7 The case was dismissed in 2019. Forms of coded or nonverbal harassment are unlikely to be considered evidence for legal harassment by the courts given the legal demands for consistent, highly visible actions.

EEOC stipulations are out of step with some of the most insidious ways discrimination plays out on the job. They give the go-ahead to harass to all but the sloppiest of workplace. The EEOC serves the employer, not the employee.

What does this mean for antisemitism on the job? Many firms specializing in corporate risk advise employers to hold a “Holiday” party, rather than a “Christmas” party to protect themselves from charges of discrimination.8 If that’s all it takes, Jews face an almost impossible burden of proof. Given the current DEI climate, not only would Jews need to present direct evidence of antisemitism; they would also need to get past DEI assumptions that they don’t fit a protected category of citizen. The structural racism inherent in the EEOC guidelines,9 combined with current cultural systems based in ancient prejudices, will most likely leave Jews unprotected against workplace harassment. In the end, the only opportunity in the Equal Employment Opportunity Commission is the opportunity for employers to be racist. It is baked into United States law.