Employment Law Daily Jury can hear Sec. 1981 claim that coaching position was denied to ‘young Jewish man’
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Wednesday, September 4, 2019

Jury can hear Sec. 1981 claim that coaching position was denied to ‘young Jewish man’

By Joy P. Waltemath, J.D.

The applicant, a practicing Baptist, was denied a football coaching position after he disclosed to the college president that his mother was Jewish.

Although an unsuccessful applicant of Jewish heritage for a college football coaching position could not advance his Title VII race discrimination claim, because at the time Title VII was passed, Jews were not thought of as a separate race, he was able to withstand summary judgment against his race discrimination claims under Section 1981—in 1966, Jews were considered a protected “race.” A federal district court in Louisiana found direct evidence of race discrimination in a statement made by the decisionmaker in speaking to the head coach and referring to the applicant as a “young Jewish man” at the time the decision not to hire him was being made. The college lacked evidence establishing at the summary judgment stage that the same decision would have been made had he not been Jewish. And the court found no support to the college’s assertion that either the Title VII religious exemption nor the First Amendment would protect it, since the position was not ministerial; plus, all the parties agreed that the applicant was a practicing Baptist (Bonadona v. Louisiana College, August 28, 2019, Drell, D.).

Asked during interview about parents’ religion. The applicant had attended Louisiana College, a private Baptist college, played football there, and while attending converted from his Jewish faith (his mother was racially and religiously Jewish) to Christianity. After graduating, he became an assistant football coach but left to pursue a graduate degree; a couple of years later, the college’s new head coach sought him out to be a defensive backs coach. The applicant interviewed for the position with both the head coach and the college’s president. During his interview with the president, the president asked him about his parents’ religious affiliation: he said his father was Catholic, his mother was Jewish, and that he was a practicing member of the Christian faith and attended a Baptist church.

Not hired. Because the head coach had assured him that the position was his, the applicant resigned from his current coaching position but, a week later, the coach contacted him to inform him that the president had determined not to hire him “because of his Jewish heritage.” After exhausting administrative remedies, the applicant sued alleging race discrimination under Title VII and Section 1981. The college and its president moved for summary judgment.

No Title VII race claim. The court granted summary judgment against the applicant’s Title VII claim, reasoning that Jews are not a protected racial class under Title VII, citing U.S. Supreme Court precedent from 1987 that noted in Shaare Tefila Congregation v. Cobb, Jews were considered to be a race and therefore protected by Section 1981 in 1886, when that statute was passed, but by 1964, when Title VII was passed, they were no longer though of as members of a separate race. The court would not apply Section 1981 interpretation to Title VII on this issue.

Section 1981 race claim supported by direct evidence. That same reasoning allowed the applicant to proceed under Section 1981, which is governed by the same evidentiary framework as Title VII. And although the court found one statement the applicant offered to be inadmissible hearsay (it was based on the head coach’s deposition testimony that another coach had told him the president said he would not hire the applicant because of his Jewish descent), another statement was admissible. That conversation, as recounted by the head coach, was between him and the president, during which the president allegedly referred to the applicant as “the young Jewish man” who was “not the best for the [college].” Although the president denied the statement in his deposition, the coach’s deposition confirmed his memorialization of the statement in a “post interview report” that the head coach had created.

Not a stray remark. In the court’s view, this was not a stray remark, given that it related to race, it was given by the president, who had ultimate hiring authority, and was made at the time of the decision not to hire the applicant and specifically referred to the decision not to hire him.

Burden of proof. Because the statement was direct evidence of racial animus, the college had the burden of proof to show by a preponderance of the evidence that it would have made the same no-hire decision absent the discrimination. However, here the college and its president only proffered a legitimate nondiscriminatory reason under the burden-shifting framework (that the applicant had not articulated “a vibrant faith in Christ” and had failed to complete the employment application); they did not provide the court with evidence to support their decision, and thus the court would not grant summary judgment in their favor.

Religious exemption. As to the college’s argument that the applicant’s claims violated the religious exemption to Title VII and the First Amendment’s free exercise and establishment clauses, the court disagreed. First, the religious exemption “is aimed at religious based employment discrimination, not race,” reasoned the court, and the applicant did not claim religious discrimination: Both parties agreed he is a practicing Baptist. Second, the only evidence of an employment requirement of the coaching position possibly ministerial in nature was the “ability to articulate a vibrant faith in Christ”—and without more, the court did not find it a ministerial position.

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