A motion by the City University of New York (CUNY), its Professional Staff Caucus (PSC) and members of the union’s New Caucus to dismiss a case brought by five observant Jewish staff members at Kingsborough Community College in Brooklyn who charged they were subject to “pervasive” religious discrimination has been denied.

Brooklyn Supreme Court Justice Gina Levy Abadi in an Aug. 11 ruling allowed the case brought by Jeffrey Lax, Susan Aranoff, Rina Yarmish, Michael Goldstein and Michelle Davidowitz to proceed. The first of several filings in the case was made in February 2021 and oral arguments on the motions were heard on June 14.

The five have alleged they were subjected to a hostile work environment and retaliation based on religion in violation of New York state and city human rights law as well as an allegation from Lax against union members claiming assault and false imprisonment.

“Plaintiffs allege that they and other observant Jewish faculty and staff members at Kingsborough have faced pervasive, antireligious discrimination from a particular segment of fellow faculty members who are leaders of a faculty group called the Progressive Faculty Caucus (PFC) and are also members of the New Caucus,” according to the 45-page ruling, which described the New Caucus as a political party of the union.

The PFC, which was not named in the suit, was formed about five years ago to advance various progressive initiatives on the Kingsborough campus. The suit alleges the New Caucus closely coordinated with the PFC to dominate campus elections and call for the removal of observant Jewish faculty members, administrators, department chairs and others at the Brooklyn institution.

Among other allegations, the suit charges the PFC denied entry to every observant Jewish applicant; the PFC and New Caucus lobbied against observant candidates running in campus elections; the PFC called for removal of observant faculty members; the PFC organized an anti-discrimination event on Friday night specifically to exclude Sabbath-observant Jews, and then union leaders applied pressure to Kingsborough’s chief diversity officer, Victoria Ajibade, to suppress an investigation of the event.

It additionally charged that Lax was “badgered” at a union event by five PFC members, including two union officials, and that one of the 11 professors named in the suit—Matthew Gartner—told a Kingsborough student who asked to take off two days to observe the Jewish holidays that the student ”should have gone to a Jewish school.”

Other allegations charged a PFC and New Caucus member wrote in a “communist” newspaper about their “struggle” against a “network of Zionists” at Kingsborough and made similar statements in a publicly distributed campus survey; an internal PFC email mentioned the need to “bring violence to the Zionists on campus;” antisemitic flyers were distributed on campus; a portrait of Goldstein’s father—a former Kingsborough president—was defaced; nails were found in Lax’s and Goldstein’s car tires; and that PFC members called for firing the plaintiffs from their jobs.

CUNY argued that it is a separate entity from the PFC, New Caucus and their members and is not responsible for their actions or discrimination allegedly perpetrated by them.

However, Levy Abadi cited New York case law that held an employer can be held liable for an employee’s discriminatory act “where the employer became a party to it by encouraging, condoning or approving it.”

“Employer liability exists where the employer, after learning of harassing and/or discriminatory conduct of an employee, does nothing about it,” read the court filing.

CUNY disputed it failed to act citing its hiring outside counsel, Jackson Lewis P.C., a firm specializing in labor and employment law. However, the firm’s report found that “Lax’s claims that he was discriminated against and/or subjected to a hostile work environment based upon his religion can be substantiated in part by a preponderance of credible evidence,” according to the decision and said a similar situation existed with Yarmish.

Despite the evidence suggesting the Friday night meeting was deliberately scheduled to exclude Lax and Yarmish the Jackson Lewis report “attempts to rationalize” their exclusion by finding it “was done not out of religious animus but simply utilized Lax and Yarmish’s religious commitments as a means to prevent them from attending.”

“This analysis is flawed since the utilization of an individual’s religious beliefs and practices to limit their inclusion is the very definition of religious discrimination,” wrote Levy Abadi, who also noted that the report’s finding that Goldstein and Aranoff’s allegations of discrimination and hostile work environment could not be sustained by a preponderance of credible evidence did not make sense because “there was no reason why such exclusion would be discriminatory against Lax and Yarmish, but not against Goldstein and Aranoff, when they all share the same religious practice and observance of the Sabbath.”

The report was also criticized for “blithely” accepting the excuses of the PFC for excluding the plaintiffs from their organization, among other issues.

Despite its own contradictory evidence in its report, letters were sent to Lax, Yarmish and Aranoff in September 2020 from the firm stating credible evidence doesn’t exist to support the allegation of discrimination.

The plaintiffs said the report was sent directly to CUNY and they only became aware of its existence through a freedom of information filing. They contend the firm’s letters were sent “entirely in bad faith and designed by CUNY to whitewash the matter” and CUNY failed to show the report triggered any corrective action.

Citing the “significant dispute” about CUNY’s inaction, Levy Abadi said that merely hiring Jackson Lewis didn’t absolve it of liability or warrant dismissal of the complaint against it.

Additionally, the decision pointed out the firm’s letters contradicted a finding by the federal Equal Employment Opportunity Commission (EEOC) in February 2021 that Lax and other observant faculty were discriminated and retaliated against because of their religion and CUNY was “complicit” because of its failure to take corrective action.

It was also alleged by Jewish professors that in February 2021 Kingsborough President Claudia Schrader retaliated against Lax “in a humiliating fashion by circulating vile quotes from a faculty survey to the entire Kingsborough campus, which named Lax as the main cause of the lack of collegiality on campus” because he had filed discrimination claims. The complaint also alleges Schrader ignored discriminatory practices on campus.

“Thus at this juncture, plaintiffs have made sufficient allegations as to this disputed issue, particularly in view of the EEOC’s determination, which warrant denial of CUNY’s motion in this respect,” wrote Levy Abadi.

Debra Rubin has had a long career in journalism writing for secular weekly and daily newspapers and Jewish publications. She most recently served as Middlesex/Monmouth bureau chief for the New Jersey Jewish News. She also worked with the media at several nonprofits, including serving as assistant public relations director of HIAS and assistant director of media relations at Yeshiva University.