When justice is blind to anti-Semitism

President Trump’s Justice Department has now asked the US Supreme Court to consider and reverse the decision by ten judges of the federal court of appeals in Richmond who invalidated Trump’s travel ban because the ban was, they said, unconstitutionally motivated by anti-Muslim bias. Chief Judge Roger Gregory’s opinion cites statements made by candidate Trump as proof that hostility to Muslims was the true intent of the President’s Executive Order. The majority opinion even quotes Jonathan Swift’s famous maxim: “There’s none so blind as they that won’t see.” The judges who joined the majority opinion self-righteously exclaimed, “We cannot shut our eyes to such evidence when it stares us in the face.”

The petition requesting Supreme Court review filed last Friday by the Acting Solicitor General called the appeals court’s ruling a “remarkable holding.” It noted that American courts do not invalidate “religion-neutral government action” because of “speculation about officials’ subjective motivations.” In upholding a public display of the Ten Commandments, the Supreme Court had said that it is not a judge’s job to engage in “judicial psychoanalysis of a drafter’s heart of hearts.” Nonetheless, ten federal appellate judges eradicated a Presidential directive designed to protect the safety of US residents because the judges discerned religious prejudice against Muslims in the President’s motivation.

The same august group of federal jurists recently proved itself incapable of recognizing religious prejudice against Jews when such bias stared the judges in their faces. A recent case before the Court of Appeals for the Fourth Circuit involved Susan Abeles, an Orthodox Jewish employee of the Metropolitan Washington Airports Authority. In 2013 she was suspended without pay for having observed the concluding two days of Passover. During the 26 years that she worked at the same job for the Airports Authority, she had given her supervisors a list of Jewish holidays at the beginning of every calendar year. They knew that on holidays like Yom Kippur and Passover she would be out on annual leave.

Susan had relatively new supervisors in 2013, and they did not like her. She disputed their allegation that she was “insubordinate.” Her past performance evaluations by many different supervisors had been excellent, and she had won several awards. When the Passover holiday approached, Susan noted the four dates when religious observance would keep her out of the office on her supervisors’ Outlook calendars.

The concluding two days of Passover in 2013 were on Monday and Tuesday. Neither of her supervisors was in the office on the Friday before the holiday, so Susan sent them an email reminder at noon that she would be out of the office to observe the religious holiday on Monday and Tuesday. Her second-level supervisor replied in an e-mail: “Thanks. Please see my note about providing us a status update before you leave today.”

This amounted to full compliance with the language of the Airports Authority’s “Absence and Leave Directive” which specified that employees should have “an exchange of e-mails between the employee and supervisor.” Nonetheless, when Susan returned to work the following week she was told she had been “AWOL” for the last two days of Passover because her immediate supervisor had not given her oral approval. Susan was suspended without pay for an additional 5 days for “failure to follow leave procedures” and being “absent without leave.” In such a hostile work environment that failed to respect her religion, Susan felt she had no choice other than to take early retirement.

The federal Civil Rights Act requires both government and private employers to make a “reasonable accommodation” for the religious observances of their employees. Susan filed a complaint with the Equal Employment Opportunity Commission, and then brought a federal lawsuit against the Airports Authority. The Authority moved the case from the District of Columbia to Virginia, and 16 days before a jury trial was to begin, the federal judge in Virginia threw out Susan’s case. He did not, in an opinion he issued more than two weeks after his decision, even mention the “reasonable accommodation” provision of federal law.

Although she was supported in her appeal by both the American Jewish Committee and the Becket Fund for Religious Liberty, three judges of the Fourth Circuit court rejected her appeal on the ground that Susan did “not establish… a religious conflict with an employment requirement.” Contradicting undisputed documentary evidence, the three appellate judges declared that Susan had “failed to obtain advance approval for her absence on April 1 and 2, which coincided with the last two days of Passover in 2013.”

The three judges tried to bury this decision by classifying their 16-page opinion as “Unpublished.” Their plain factual error that produced the unjust result was called to the attention of the full complement of active Fourth Circuit judges in a petition for rehearing that quoted the language of the Airports Authority’s directive on annual leave (which did not require approval by an employee’s “immediate” supervisor) and the exchange of emails between Susan and her second-level supervisor. The full court – which included all 10 judges who discovered religious bias in the Presidential travel ban — rejected the request for rehearing, apparently oblivious to flagrant religious discrimination.

Susan has announced her intention to take the case to the Supreme Court of the United States. That Court, unlike the United States Court of Appeals for the Fourth Circuit, may have judges who will recognize religious discrimination when it stares them in the face.

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The author, who has argued 28 cases in the Supreme Court and is on the Adjunct Faculty at Columbia Law School, represents Susan Abeles.