Written by Robin Shea From Constangy Brooks Smith & Prophete LLP on March 7, 2025
And you thought they’d be asleep the next four years.
This week, the U.S. Equal Employment Opportunity Commission issued a press release indicating that the EEOC would be cracking down on antisemitism in the workplace, with special emphasis on college and university workplaces.
Although institutions of higher education are the primary focus of the EEOC, the press release made clear that no employers should tolerate antisemitic harassment or discrimination.
(The EEOC does not have jurisdiction over antisemitism that targets students, but of course other government agencies do.)
The press release quotes Acting EEOC Chair Andrea Lucas as follows:
In the wake of the . . . Hamas terror attacks in Israel, news coverage of the severe outbreaks of antisemitism at our country’s leading universities focused on the students affected . . .. But universities are workplaces, too, and large-scale employers. In addition to Jewish professors on campus, universities employ Jewish staff who work a variety of jobs, all of whom have the right not to be discriminated against or harassed on the basis of religion, national origin, or race.
The press release links to this nice Fact Sheet about antisemitism in the workplace.
I have not seen a spike in claims of discrimination or harassment by Jewish employees since the Hamas attacks in October 2023. However, college employers – as well as other employers – should still ensure that they do not discriminate against Jewish applicants or employees, and that they prevent or promptly remedy any antisemitic harassment.
Here are eight tips:
- Be aware that Jewish applicants and employees might be discriminated against or harassed not only because of their religious beliefs or practices, but also based on their “race” or their national origin. All of it violates Title VII.
- Update your harassment training to specifically cover anti-Jewish harassment. This goes quadruple if you are an institution of higher education, or if your work force includes a significant population of employees who you know have anti-Jewish sentiment – whether the basis for the sentiment is religious, ethnic, or political.
- If you’re a college or university, consult with your education counsel as well as your employment counsel about what you can legally do to prevent and address antisemitic harassment by students.
- Do not tolerate harassment of Jewish employees or students.
- If you are not already doing so, provide reasonable accommodations as needed to allow Jewish employees to participate in religious observances or otherwise practice their faith.
- Don’t count on the “undue hardship” defense to a religious accommodation claim. As a result of a U.S. Supreme Court decision issued in 2023, it is more difficult for employers to claim that a particular religious accommodation is an undue hardship. In the old days, if an accommodation would have required the employer to incur more than a “de minimis” cost or expense (figuratively, pennies), then the employer could assert the undue hardship defense and often win. But now employers have to show that making the accommodation would entail “substantial increased costs . . . in relation to the conduct of the particular business.” Figuratively, that is your kid’s college tuition. At private school. For all five years.
- If you are a public institution or receive federal funds, consult with your legal counsel about how best to enforce your policies against harassment of Jewish students or employees without running afoul of the First Amendment.
- If you are a faith-based organization that is not Jewish, consult with your legal counsel before you reject a Jewish job applicant or terminate a convert on religious grounds, or deny a religious accommodation. (You should do the same with non-Jewish individuals who are outside the faith.) Faith-based organizations get more leeway to “discriminate” than secular organizations, but they don’t get blanket permission to do so. Each specific situation has to be taken into account.
Although the EEOC’s press release this week may have been prompted by the change in Presidential administrations, it does not signal a radical change in philosophy. The EEOC issued a strong statement against antisemitism in 2021, during the Biden Administration, and it was signed by all five members of the Commission at the time (three Democrats as well as Ms. Lucas and Keith Sonderling, a Republican who is now Deputy Labor Secretary in the second Trump Administration). Not long after the Hamas attacks and while President Biden was still in office, the EEOC’s Charlotte Regional Office conducted training open to the public on antisemitic discrimination and harassment. I know about the Charlotte program because I participated (as an attendee), but I assume other EEOC offices put on similar programs at the time.
That said, if the EEOC now plans to aggressively pursue colleges and universities on behalf of Jewish employees who are affected by antisemitic activity on campus, that could be more than a “de minimis” change.
