US Dept. of Defense to Make Changes to Jewish Job Applicants

In a settlement agreement reached between Jeffrey Podell, of Ardmore, Pennsylvania, and the Department of Defense, it was agreed that a number of significant changes would be made in the operation of the Department of Defense, National Geospatial-Intelligence Agency (“NGA”).

Jeffrey Podell was represented by Clifford A. Rieders, Esquire, of the law firm of Rieders, Travis, Dohrmann, Mowrey, Humphrey & Waters, and local counsel Justin Dillon, of the law firm of Dillon PLLC.

Podell applied for a job with the NGA, but was only offered Saturday testing.  When he asked for a reasonable accommodation because of his Jewish religious observance, it was denied. Podell followed all the steps to achieve a reasonable accommodation, and none was ever offered.

The agreement between the parties requires the NGA to provide a date for Mr. Podell to attend testing as part of the hiring process. Specifics concerning the testing were agreed to, including what that testing would consist of. Significant is that the Department of Defense agreed to ensure that interviewing panel members would have no knowledge of the case that was brought or the equal opportunity filing. The NGA also agreed to provide Podell with the interview panel’s notes, and any memorialization by the panel pertaining to the reasoning for its decision.

The NGA also agreed to include the following language in an NGA police standard operating procedure that would be transmitted by email to the NGA Police, NGA’s Human Resources Department, and NGA’s General Counsel.  This will be circulated within the next 30 to 60 days, after the agreement was signed:

Both applicants for employment and current employees of NGA are entitled to request accommodations from generally applicable employment-related rules and requirements, so long as the accommodation requested would not result in undue hardship to the conduct of NGA’s business.  These accommodations are equally available to those who apply for employment with the NGA Police, and inform NGA that their sincerely held religious beliefs preclude them from attending a hiring event; individuals who make such a request should be provided with an alternate day on which to come to the relevant NGA campus for hiring-related events.  NGA Police who receive such requests are to consult immediately with NGA’s Human Resources staff and office of General Counsel.

The NGA also agreed to periodic, “annual in-service” training sessions.  Employees are and will be required to attend a training session each year that includes information regarding NGA’s obligation to provide religious accommodation from generally applicable employment-related rules and requirements, so long as the accommodation requested would not result in an undue hardship to the conduct of NGA’s business.

Finally, NGA agreed to post the following language on its website:

Both applicants for employment and current employees of NGA are entitled to                        request religious accommodations from generally applicable employment-related                    rules and requirements, so long as the accommodation requested would not result                    in an undue hardship to the conduct of NGA’s business.

It is believed that these significant changes will be utilized generally by the               Department of Defense, which has not traditionally been receptive to Sabbath-observant Jews.

This settlement is the first of its kind that counsel are aware of.

In addition to the significant changes in the way that NGA will do business with respect to Sabbath-observant Jews, payment was made to compensate Mr. Podell and counsel.

The case was originally brought in the United States District Court for the Eastern District of Pennsylvania and assigned to Judge Joel Slomsky.  Extensive briefing and argument took place in that Court.  After the initial argument, on the record, Judge Slomsky stated to the United States Attorney as follows: “Equity, equity; all I hear about is equity these days.  Isn’t there equity for Jews?”  While the Judge’s remarks were off the record, it sent a clear indication of how the Courts would look at this case.

The matter was subsequently transferred to the Eastern District of Virginia, where federal employment activities take place, although it was also disclosed that recordkeeping for federal employees is lodged in Pennsylvania.

In the Eastern District of Virginia, the case was assigned to United States District Judge T.S. Ellis, III.

Argument took place in connection with various Government motions to dismiss.

Judge Ellis, like Judge Slomsky, expressed shock and dismay at the way the Department of Defense treated Jewish applicants.

You know, I am stunned, frankly – – I’m an old person, I’ve been around a long time.  I’ve been on this bench for 36 years.  And to have this claim brought forward seems to me to be odd.  I don’t understand why the Department of Defense couldn’t have simply done it on Thursdays or Wednesdays for this person.

I mean, how many Orthodox Jews do you get applying?  A tiny number, probably.  And so we’re here for all of this?

During the argument on whether Mr. Podell had properly made a claim for disparate impact of observant Jews, the Court engaged in the following exchange with the United States Attorney:

THE COURT:       Do you have any idea what Orthodox Judaism requires?

PICKREN: I do, Your Honor.

THE COURT:       You do? Have you ever lived next to an Orthodox Jew?

PICKREN: I have not.

THE COURT:       Do you have personal friends who are believing Orthodox Jews?

PICKREN: I do not.

THE COURT:       Reminds me of the days when — well, never mind. They have alleged sufficient. There is adequate information there, there’s no question. Where did you attend law school?

PICKREN: The University of North Carolina.

THE COURT:       Chapel Hill.

PICKREN: Yes, Your Honor.

THE COURT:       So there may not have been any Orthodox Jews there.

PICKREN: I did grow up in Northern New Jersey.

THE COURT:       Well, you should have lived close to some there. Where did you attend college?

PICKREN: Albright College in Reading, Pennsylvania.

THE COURT:       Well, I’m reminded of reasons in this country why discrimination arose, because people didn’t know each other. They didn’t know different groups. I can’t tell you how many people have never lived next to or close to or had African-American friends, and look what grew out of that. And the same is true with this.

After further argument, the Court again observed:

THE COURT:       Again, I’m stunned. I’m stunned that you and the EEOC and nobody else would know that there is such a thing as Orthodox Judaism, and what that is. It’s astonishing, absolutely astonishing.

The United States appeared to argue that Mr. Podell was obligated to prove that an observant Jew would object to Saturday testing.  As counsel for Mr. Podell stated:

RIEDERS: And, frankly, I am amazed to read, given I’ve had many of these cases with the United States on the other side, the United States argue – and they have argued in their brief, and I hope this will be repudiated – that Mr. Podell is obligated to prove that Saturday testing — and what happens there is testing both physical and written. That Saturday testing affects Jewish people. They have put that in their brief. I’ll give you the exact quote, because I read it and I couldn’t believe I was reading it correctly.

So let me give you that exact quote. “He,” Mr. Podell, “He has failed to allege any facts plausibly suggesting that the above-mentioned practices caused a disparate impact on those who practice the Jewish faith.”

Finally, the Court, in understandable frustration, noted:

THE COURT: Well, you don’t want to show up in this court again in abject ignorance about Orthodox Jewry, would you?

PICKREN: I would not, Your Honor. And I just want to —

THE COURT: Good. You should go read Exodus and some other parts of the Old Testament. The rules are quite explicit.

Now, I would argue that some of the rules — because I lived for years — not years. For two years I lived next door to an Orthodox Jewish family at Harvard, and learned a great deal about it. And we’ve even had some arguments about whether some of the rules were really required or whether they were interpretations that should have gone the other way.

But that’s not the point here. The point is that he thinks that this case should be a moment for education among the Department of Defense, and, indeed, I would even think at the EEOC. They should know this.

Now, let’s do this. You’ve briefed this matter fairly thoroughly. I think I’m going to recess this matter until 3 o’clock, at which time I will see if you’ve reached some accommodation which will solve this plaintiff’s problem, and also whether you-all, in the future, will have this problem.

I will tell you this much. I think he has adequately pled his disparate impact claim. And, on exhaustion, there’s a good deal of mixed up law in that regard, but it’s basically an affirmative defense. And how much has to be exhausted is always going to be an issue, how precise it has to be.

In conclusion, the Court noted:

In other words, if there’s an Orthodox Jew who is observant — there are lots of Orthodox Jews that aren’t observant about the Sabbath. But if one of them shows up to be an applicant, he ought to be accommodated and you get on with it. Even the Israel Defense Force does that.

After the hearing, protracted, lengthy and difficult negotiations took place, resulting in the resolution described above.

Rieders stated, “This is a trailblazing case.  We, Mr. Podell and The Rieders Foundation, were Amicus Curiae in Groff v. DeJoy, involving a Christian Sunday observer.  This case could not have been brought and sustained without the work and financial involvement of The Rieders Foundation and the able assistance of both John Greil at the University of Texas Law School Internship Program, and Thomas Olp, General Counsel at the Thomas Moore Society.”

For the first time, those who observe sabbath and seek to work for the United States Government and the Department of Defense have nothing to fear.

Jeff Podell noted, “It has been a long and difficult ordeal, but I am happy for an outcome which will greatly benefit those who observe and sanctify Saturday as the sabbath.”

The Rieders Foundation is a 501(c)(3) nonprofit, headquartered at 161 West Third Street, Williamsport, PA 17701, at the following website: www.riedersfoundation.com.

Picture is of Mr. Podell.