Do Jews get equal justice?


This is really easy,” said the late Justice Antonin Scalia when he announced the Supreme Court’s 8-1 decision two years ago in favor of Samantha Elauf, the Muslim girl who applied for a sales job with Abercrombie & Fitch. The court ruled that the Civil Rights Act was violated by Abercrombie when it turned Elauf down because she wore a hijab. When Susan Abeles first contacted me about her own discrimination case and described the basis for her legal claim, I also thought to myself that her case, like Elauf’s, was “really easy.”

Abeles is an Orthodox Jewish woman who lives in a District of Columbia suburb. She was employed by the Metropolitan Washington Airports Authority since 1987. The MWAA is the quasi-governmental authority that runs Reagan and Dulles airports. Its board of directors is appointed by the president, the governors of Virginia and Maryland and the mayor of the District of Columbia.

Abeles’ religious observance was known to supervisors and others at MWAA during her entire 26-year tenure. It was her regular practice to give her supervisors a list of the dates of the Jewish holidays at the beginning of each calendar year. Her supervisors knew that she would be out of the office, taking annual leave vacation time, on two days of Rosh Hashanah, one day of Yom Kippur, the first two and last two days of Sukkot-Shemini Atzeret, the first two and last two days of Passover and two days of Shavuot.

Abeles’ employment record was exemplary. She won several awards for excellent performance under different supervisors. But relatively new personnel were assigned to supervise her in 2011 and 2012, and they did not get along with Abeles. They claimed she was “insubordinate” — an allegation that Abeles vigorously challenged in writing and orally.

In the beginning of 2013 Abeles again listed the Jewish holidays for her first and second-level supervisors. They also requested that she provide the dates of the Jewish holidays on their “Outlook” calendars, and she did so.

The last two days of Passover in 2013 fell on Monday and Tuesday, April 1 and 2. Abeles’ immediate supervisor, who had responsibility over no one else, was unexpectedly out on annual leave on the Friday preceding the last two days of Passover. So Abeles could not — as she had done before the first days of Passover — remind her immediate supervisor orally that she would be absent for the religious observance.

At 11:59 a.m. on Friday, March 29, Abeles sent an email to her first and second-level supervisors reminding them that she would be on annual leave on the following Monday and Tuesday. The first-level supervisor did not respond, but the second-level supervisor sent an

email six minutes later saying, “What is the nature of this leave request?” Abeles replied at 12:11 p.m.: “This is a reminder of my schedule leave for Passover.” The second-level supervisor answered at 12:16 p.m.: “Thanks. Please see my note about providing us a status update before you leave today.”

Abeles observed the concluding days of Passover at home. When she returned to the office after Passover she was informed that her absence was changed from “annual leave” to “AWOL.” She received formal notification that she would be suspended for five days without pay for failure to follow leave procedure and absence without leave. The supervisors also added their charge of “insubordination,” although they had initially intended to issue only a “reprimand” and not a “suspension,” for that alleged violation which she had contested.

Concluding that she could not continue employment in a climate of religious prejudice, Abeles was compelled to take early retirement and filed a legal claim with the Equal Employment Opportunity Commission against the MWAA under the federal Civil Rights Act. The law does not allow an employee to sue in a federal court until he or she has exhausted possible mediation before the EEOC.

Abeles contacted me while she was in the EEOC proceeding, and, on hearing the facts I’ve described (which are not disputed), I agreed to bring a lawsuit for her because I thought that her claim was, in Justice Scalia’s words, “really easy.”

In a friend-of-the-court brief I wrote supporting the Elauf’s claim in the Abercrombie case, I described my personal role in the enactment of the section of the Civil Rights Act that required employers to make a “reasonable accommodation” to the religious observances of their employees. The original text of the Civil Rights Act of 1964 prohibited employment discrimination on the basis of “religion,” but had not defined “religion” to include religious observance. A Jewish Sabbath-observer or a Christian Sunday-observer (one of whom I later represented in a Supreme Court case) could not, under the original text of the law, complain if an employer required him or her to work on the religious day of obligatory repose.

The Supreme Court of the United States divided equally, 4-4, on whether the term “religion” included religious observance in a case called Dewey v. Reynolds Metals Co. So in 1973, as amendments improving the Civil Rights Act were making their way through Congress, I personally drafted what is now Section 701(j) of the act. My proposed amendment was given to Sen. Jennings Randolph of West Virginia, who was universally respected in the Senate. He was a Seventh-Day Baptist, a small Christian denomination — different from the much larger Seventh-Day Adventist Church — that observes Saturday as the Sabbath. Explaining his own religious observance of Saturday on the floor of the Senate, Randolph proposed the language I had drafted during the Senate’s debate over various amendments. It was overwhelmingly approved by the Senate, accepted by the Conference Committee of the House and Senate and signed into law.

Abeles’ legal claim that she had been denied the religious accommodation that federal law prescribes seemed to me as strong a case of failure to “accommodate” religious observance as I could possibly imagine. The lawsuit I brought for her was mysteriously rebuffed, however, by a Virginia federal judge 16 days before it was to go before a jury. The judge’s written opinion, issued two weeks after he ordered that Abeles’ claim be dismissed, did not even mention the accommodation provision of the Civil Rights Act.

The Court of Appeals, I thought, would surely remedy this injustice. Our appeal was supported by the American Jewish Committee and the Becket Fund for Religious Liberty. When I argued the appeal in Richmond, I was shocked to encounter three hostile appellate judges who expressed the view that Abeles had been punished not on account of religious observance but because she had disregarded an MWAA published instruction that she had to obtain oral approval from her immediate supervisor before taking annual leave.

The judges were demonstrably wrong. The MWAA’s published “leave policy” — not followed literally in Abeles’ 26-year experience but unexpectedly invoked to validate the punishment she was given — directs that there be “an exchange of emails between the employee and supervisor” before an employee takes annual leave. It does not require that the “supervisor” be a first-level supervisor, and the email approval Abeles received from her second-level supervisor on Friday afternoon surely satisfied this requirement.

I noted this obvious error in a petition for rehearing that also asked the full 15-member Fourth Circuit to consider Abeles’ case. The petition was denied with a curt statement that no active Fourth Circuit judge would rehear the plainly unjust result.

There could be no serious doubt that Abeles’ supervisors had punished her because she observed Passover, and the MWAA administration had put its stamp of approval on this flagrant anti-Jewish religious discrimination. Yet 10 of the same judges who turned down our petition for rehearing ruled shortly thereafter, in a case of national notoriety, that President Donald Trump’s travel ban unconstitutionally discriminated against Muslims because his anti-Muslim bias was proved by statements he made as a presidential candidate.

The 10 Fourth Circuit judges exclaimed sanctimoniously in their anti-Trump opinion that they found “religious intolerance, animus, and discrimination” from evidence that “stares us in the face.” They invoked Jonathan Swift’s famous observation that “there’s none so blind as those that won’t see.”

How about the evidence that stared those same judges “in the face” in the case of Susan Abeles? Is it possible that the jurists simply refused, in Swiftian fashion, to see what was obvious from undisputed facts?

I have now filed a friend-of-the-court brief in the Supreme Court’s travel-ban case calling the court’s attention to the Fourth Circuit’s double standard. And I will be filing a petition with the Supreme Court asking the Justices to review the Fourth Circuit’s decision in Abeles’ case. Maybe Supreme Court justices — unlike the 10 appellate-court federal judges — will recognize bias and discrimination when it stares them in the face.

Nathan Lewin is Susan Abeles’ lawyer. He has argued 28 cases in the U.S. Supreme Court and teaches Supreme Court litigation on the Adjunct Faculty of Columbia Law School.

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