Last night, I read a decision from a federal court in New York involving a plaintiff, who is Jewish, who claimed that her employer and her supervisor discriminated against her based on her religion.
The plaintiff identified many incidents that, in her view, demonstrate bias against her as a Jewish person, either in the form of overtly anti-Semitic comments or what she refers to as microaggressions. Among them, the plaintiff claimed that her supervisor told her that she “does not want an old Jewish woman running a multicultural department.”
But here’s the thing.
Her direct supervisor was (and presumably still is) Jewish too.
So the defendants argued that the supervisor, who eventually participated in the decision to terminate the plaintiff’s employment, never did or would express anti-Semitic views.
She’s Jewish, after all.
The court disagreed.
Acknowledging that some courts may infer no discrimination because two people are in the same protected class, that presumption is not conclusive. Indeed, the Supreme Court has rejected any conclusive presumption that employers will not discriminate against members of their own race. So, a reasonable jury could find that a Jewish supervisor fired a Jewish employee partly because she is Jewish. According to the court, that analysis would not require questioning or discounting the supervisor’s Jewish identity. Instead, the supervisor may not view her Jewish identity in the same way as the plaintiff and may not view herself and all Jewish people as similar in all relevant respects.
Other courts, like this one, have gone a step further by refusing to countenance similar arguments because doing so would “make the Court complicit in discrimination in its own right.” The court added that “courts should not and do not presume that individuals will act a certain way based on their membership in a protected class.”
That’s not to say that the plaintiff’s religion was the motivating factor in her termination of employment. That’s for a jury to decide.
But, in your business, if you receive a complaint from an employee that a person in the same protected class discriminated against them, you need to take that just as seriously as you would any other complaint of discrimination.