I am a shomer Shabbat* employment attorney and my practice has specialized in workplace DEI law since at least 2017–yet in all my writings about intersectionality, anti-Semitism, and the relationships between the Black and Jewish communities over the years, I have not yet attempted to describe the confusing, uncomfortable position that Jewish employees navigate in the DEI space. This is because what I have to say about it is mostly comprised of my own experiences in the workplace rather than my expertise practicing law… and my own experiences in the workplace are mostly comprised of “not sure how to talk about Jewish identity under the DEI umbrella because the very notion of Jews as a marginalized group might invoke anti-Semitic tropes.”
(OK also, admittedly, my last post about a workplace-related phenomenon did not age well… Slack’s logo remains a secret swastika and no one seems to have complained about it since 2019, and my Slack account remains active. I digress.)
Last night, a former colleague forwarded me this tweet:
Today I was thinking about my university’s equality, diversity, and inclusion workshop, where I learned we shouldn’t hire the best person for the job if that person happened to be #shomershabbos . Classic case of #jewsdontcount @Baddiel pic.twitter.com/SUzDUurywL
— Dr Karen E. H. Skinazi (@KEHSkinazi) January 5, 2022
In the several hours I’ve spent hyperfocused on this blog post, the university issued a response:
A statement regarding social media comments about the University’s equality and diversity training.
[Full text also available in the alt-text] pic.twitter.com/wPNfaD8lMB
— University of Bristol (@BristolUni) January 6, 2022
It is illegal in most countries (including the US and the UK) to discriminate against a person because they are Jewish–whether the discrimination is ethnicity-based, religion-based, or both. Discrimination laws (again including the US and the UK) allow employers to offer business-related reasons as a defense to a decision not to accommodate an employee’s request–for example, an employer holding an annual client event on a Saturday over a Jewish employee’s objection, absent other context, is unlikely to be discriminatory per se. But to decide not to hire someone because they could not attend that event? Frankly they’d have to have some pretty unique circumstances for that to pass muster. The same would go for deciding not to hire the best candidate to avoid a religious accommodation as simple as shifting a Friday afternoon meeting (in the US anyway, and a former colleague based in the UK agreed that such an outcome is highly unlikely to be justified in practice under UK law).
The university’s response that the “content was developed several years ago by an external company that provided generic online training modules” is hardly reassuring. As long as I’ve been practicing employment law (a bit more than “several years”), most employers I’ve worked with would know better than to recommend conduct of such obviously questionable legality as a “correct answer choice,” nor to use content from a vendor whose training did so.
In contrast to the egregiousness of these screen shots as part of a training, the underlying scenario is banal; every day, religiously observant individuals are excluded from opportunities for which they may be the best candidate without any individual bearing a conscious intention resembling anything of the sort. I did not establish explicit Shabbat boundaries until after I had made partner at the large law firm where I had already served over 5 years as an associate / of counsel. Did I consciously think to myself, “I can’t be shomer Shabbat because of my job” before I had made partner? No! I was always religious enough that I missed certain events because of holidays / services, and I always go completely dark on Yom Kippur, and nearly every individual I ever interacted with about it was supportive. And the tipping point was not partnership, but children–I realized that I had limited time before their habits would be set. Was concern about my career trajectory a factor? That question is impossible to answer, and there is no doubt that in that soup is stuff like the messaging in this university’s training, so insidiously labeled as DEI**.
Employers insist on beating the DEI drum in platitudes and generalities that are often far broader than what they are willing to resource, failing to see how this itself can result in legal risk. By this I mean: while all minority groups deserve to be validated, included, and treated fairly in workplaces, employers do themselves no favors when they wish to address racism but fail to center it openly. No one (that I know of) disputes that workplace DEI initiatives spiked dramatically in direct response to the Black Lives Matter movement’s advocacy following George Floyd’s murder, and yet, for predictable reasons (grounded in the historically-oppressive legal and political systems that gave rise to the movement itself), employers would prefer to engage in an all-encompassing, facially-ambiguous, and often completely impractical exercise that purports to speak to every single identity, rather than address by name the unique injustices the white*** community has perpetrated on the Black community.
There is no easy solution to this problem, and while market pressure is a positive force in many respects, Corporate America taking this on further complicates the issue; “we only care about certain marginalized groups” rightly won’t play well there. But it is hardly the answer to pretend that all identity-related concerns are the same. No individual, committee, employer, government, or organization can tap into the lived experiences of all humanity at once. While the statement itself seems perfectly obvious, the unintended consequences of it–which include overwhelm, gratuitous error, conformity bias, objectification, and the downstream externalities of all of those–less so.
As an example, consider diversity/inclusion calendars (or similarly titled). Employers have created them internally; providers have created them as promotional materials. On the surface, “let’s do a calendar with more than just the regular holidays” might be viewed as a low-risk, low-cost initiative, one unlikely to draw the ire of the legal department, of the sort to which overstretched teams understandably flock when “CEO wants to get this done.” I scanned a few of the calendars that showed up in my social feeds recently; even while high-quality and educational, they did not cover what an employer would need to support an observant Jewish employee. Most include only the 4 Jewish holidays that have always been on US calendars as long as I can remember. Some don’t specify clearly that the holiday starts the evening before. I am also somewhat familiar with Chinese holidays and these too fell short of what an employer would need to support a Chinese employee. I imagine that other holidays I don’t know have similar issues, and while maybe there are some excellent calendars out there, it’s hard to separate wheat from chaff when the concept is so en vogue (in my experience, it’s just easier to rely on individual google calendars, which might be inadequate as well but judging from the Jewish ones are more comprehensive).
And on the opposite end of the spectrum, consider company policies that ban employee resource groups based on any religion. A client at my previous firm used this policy to ban a Jewish resource group, leaving itself potentially vulnerable to an argument that Jewish employees are subject to ethnicity-based discrimination unrelated to religious practice (and deprived of the resources offered to other groups historically subject to ethnicity-based discrimination). Even setting that aside, I am dubious that it is possible to ban religion in this manner. I often recount the story of my public high school’s holiday door-decorating contest, which banned all “religious” symbols, giving a list of examples of permissible and banned symbols. Banned: nativity scene, baby Jesus, cross, star of David, menorah, dreidel, gelt. Permissible: Santa, elves, Christmas tree, reindeer, jingle bells, Hanukkah bush (emphasis mine). To define a spinning top as religious (yes, the letters reference a “miracle” but it is a simple game involving pennies or chocolate) and Santa as secular (has everyone forgotten that the word means “saint”?) illustrates even attempts to define “religious” rely on background norms that favor the majority. If the goal of a ban on religious groups is to ban evangelizing (something that also occurred in my public high school, though my memory of it is limited to a vague image of a flyer mentioning pizza and NOT Jesus), there has got to be a better way to accomplish that.
While no doubt the original tweet’s #jewsdontcount hashtag requires serious attention in its own right, the awkward and unique position Jewish employees find themselves in DEI-focused workplaces may offer some useful illustrations more broadly, showing us that the purposes of workplace DEI initiatives and antidiscrimination laws are both fundamentally distinct and intertwined. Antidiscrimination laws are centered around the conscious intentions of individual decisionmakers, creating a powerful illusion that passively exclusionary systems lacking self-awareness are perfectly legal. They are no such thing.
To the contrary, those systems are the very container in which the conditions for discrimination grow and fester in obscurity, driving suffering of those that diverge from the majority underground, and/or forcing minority employees to engage with their identities in unwelcome ways and requiring cognitive load that is not required of the majority, unfairly distracting them from work. So let us dispense with inclusion illusions, and find a way to prevent myopic focus on individual intentional discrimination from suffocating DEI’s critical systemic focus.
*according to Conservative halacha at least; we don’t spend money / write / cook, minimize tech use, and only drive to shul. This definition has become even more fraught since the pandemic and the introduction of screen services, which I typically opt out of, but I digress. For purposes of this post, I am shomer shabbos.
**Equity, as a contrast to an equality that simply reinforces the status quo, is a critical concept to DEI; as to the tweet, I understand that the use of “equality” where we would expect to see “equity’ in the tweet remains typical in the UK, though this is changing given how important the difference between those two terms is within in the global discourse.
***Two points – (1) the “I am Jewish, not white” angle–while race-based discrimination against Jews is quite real, a person can be both white and Jewish and most Jewish people I know fit that description. If you have white skin and disagree, some genealogy research may reveal your ancestors’ nationalization documents certifying that they are a “free white person” as a condition of United States citizenship. (2) While I do not do this with the intention to inflict shame or discomfort, I acknowledge that my decision not to capitalize “white” and to capitalize “Black” is not comfortable for everyone. I am never comfortable seeing “white” capitalized when referring to race and cannot bring myself to do it. I am also uncomfortable with “Black” in lowercase unless it is the explicit preference of a coauthor or editor who is Black. As with most things DEI, there is no solution to please everyone, but I am willing to settle for the symbolism of amplification of previously-silenced voices. While I’m at it, the terms “race” and “ethnicity” are themselves fraught. The larger point is that these decisions about words and letters absolutely matter, and I hope that more and more individuals will embrace explicitly that to develop attunement to choices like these is a worthwhile exercise.