Just in Time for Hannukah…
You don’t have to be Jewish to love Levy’s Rye Bread. Or according to Sunday’s New York Times, to wed under a huppah. But do you have to be Jewish to sue your employer for engaging in and allowing anti-semitic behavior?
Last August, executive assistant Ciro Rosselli filed a lawsuit against his employer McKinsey & Co. in the Southern District of New York, alleging religious discrimination and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. Although the allegation sounds pretty commonplace, the facts of this lawsuit are anything but.
It all started with a yarmulke.
A yarmulke is a religious skullcap that Jewish men wear to show their respect for God; it also signals to the world that the men wearing them are Jewish. But Mr. Rosselli, who practices “Theosophy,” began, as part of his spiritual exploration of life, to wear one to work. This did not go over big with his coworkers, many of whom ridiculed him. One coworker noticing him sporting the head covering accused him of trying to mask a bald spot. His supervisor was even more direct, crying, “Take that off!” “You’re creeping me out!” And some made what Mr. Rosselli says were pointed anti-semitic references, such as “I guess I won’t be asking you for a loan.”
The media may have broken this story, but that’s about it.
Title VII prohibits the harassment of employees because of their membership to a protected class such as religion. So we wondered — as others surely did — can an employee sue for religious discrimination targeting a religion he doesn’t belong to?
In 1999, the Second Circuit appears to have said, yes. Following the standard set forth by the 1993 Supreme Court decision in Harris v. Forklift Systems, the Second Circuit held, so long as there is evidence that “the workplace was permeated with discriminatory intimidation, ridicule, and insults sufficiently severe or pervasive to alter the conditions of the victim’s employment,” the plaintiff has a claim under Title VII. Mr. Rosselli can argue that his workplace was so permeated with harassment of the Jewish faith that it altered his conditions of employment.
While such an argument parts the sea, it doesn’t lead Mr. Rosselli the Promised Land. He still has to show, according to a 2002 Second Circuit opinion, that the “totality of the circumstances” of harassment rises to the legal level of a hostile work environment.
According to a 1997 Second Circuit decision, whether harassment rises to the legal level of a hostile work environment depends on factors such as the quantity, frequency, and severity of the comments directed against the employee. And, according to the 1986 Supreme Court case Meritor Savings Bank v. Vinson, the “mere utterance of an ethnic or racial epithet which engenders offensive feelings” is not, by itself, actionable under Title VII.
In total, Mr. Rosselli has alleged seven separate instances of harassment over a period of four months, which, given their nature, will be seen as “isolated and discrete” occurrences. The Southern District of New York has previously found that “a total of approximately five or six incidents” was not pervasive enough to rise to the legal level of hostile environment, and the fewer than 10 slings and arrows aimed at Mr. Rosselli don’t seem to us to have been any more pervasive than in that case.
But all is not lost for Mr. Rosselli. He had complained to his human resources about his treatment, and was fired two days later, so he has a claim for retaliation under Title VII. To prove retaliation, a plaintiff must show a causal-relationship between the protected activity and an adverse employment action. Because the employer fired Mr. Rosselli shortly after he took part in a protected activity (complaining of religious harassment), he was arguably the victim of retaliation.
While I don’t think Mr. Rosselli will win his case based on hostile work environment, Mr. Rosselli may well win based on retaliation; sometimes decisions by the courts can be as shaky and unpredictable as… well, as “a Fiddler on the Roof.”