JUSTICE - No. 68

24 No. 68 JUSTICE society. While hate speech is constitutionally protected, it does not mean we cannot call it hateful. No one who calls sexist speech sexist, or racist speech racist is accused of chilling speech.44 Calling antisemitic speech by its rightful name should not be any different or any more controversial. While the government cannot regulate speech or expression, it can regulate behavior.45 Such regulation is at the core of all criminal and many civil laws, including the federal and state statutes in the U.S. that regulate discriminatory conduct on the bases of race, religion, national origin, gender, or ethnicity.46 Context is crucial in alleged discrimination. For example, in the context of employment discrimination, the U.S. Supreme Court has been clear that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering “all the circumstances.” In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.47 Antisemitism is no different. That is why the IHRA definition includes the caveat that the examples given, “could, taking into account the overall context,” be antisemitic. What makes antisemitism different is that despite the fact that Jews make up only 2% of the U.S. population, they account for 60% of all hate crimes directed at a specific religious group, and 13% of hate crimes overall.48 Even though those numbers are rising, a study issued by the American Jewish Committee in 2020 found that nearly half of all Americans say they have never heard the word antisemitism, or do not know what it means.49 You cannot assess the context of alleged antisemitism if you do not know what the term means, which is also why some laws, such as Iowa’s, include a call for additional education and training on the subject. Establishing an Objective Framework for Discriminatory Harassment Governments can and should regulate certain destructive behaviors. In some instances, it is easy to establish the type of discriminatory behavior that could potentially violate the law. For example, the act of illegally hiring, firing, or refusing housing, if done for discriminatory reasons, is itself the operative factor. Other cases, like discriminatory harassment, can be more difficult to pin down. In general, “[U]nlawful harassment is defined as unwelcome conduct directed at an individual based on a characteristic that is protected by antidiscrimination law,” and that has a negative effect on that person.50 For example, the U.S. Equal Employment Opportunity Commission defines harassment under Title VII of the Civil Rights Act of 1964 as: unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history). Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive… Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people. 43. https://www.dictionary.com/browse/definition 44. Cynthia Miller-Idriss and Jonathan Friedman, “When Hate Speech and Free Speech Collide,” DIVERSE (Dec. 5, 2018), https://diverseeducation.com/article/133611/ 45. https://www.kwch.com/2021/04/16/attorneys-firstamendment-protects-hate-speech-not-hate-crimes/ 46. https://www.archives.gov/milestone-documents/civilrights-act 47. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 1003, 140 L. Ed. 2d 201 (1998), citing to Harris v. Forklift Sys., Inc., 510 U.S. 17 at 23, 114 S. Ct., at 371. 48. FBI 2019 HATE CRIME STATISTICS. Available at https://ucr. fbi.gov/hate-crime/2019 49. https://www.ajc.org/sites/default/files/pdf/2020-11/ The_State_of_Antisemitism_in_America_2020.pdf 50. https://www.skillsoftcompliance.com/AICC_Courses/ 5263/Content/cca/zjjgrp_01_a08_lcc_enus/output/html/ sb/sblch_01_a08_lc_enus002005.html#:~:text=Unlawful%20 harassment%20is%20defined%20as,conditions%20or%20 terms%20of%20employment