Two weeks ago Judge Mark Hornak ruled in Newman v. Point Park Univ. (W.D. Pa., which I believe reaches the correct results:
Plaintiff Channa Newman, a Jewish, Israeli and Czech woman, was born in 1942. She is currently employed by Point Park University, a postsecondary education institution in downtown Pittsburgh. Since 1964, Plaintiff has been employed at Point Park as a professor and occasionally as a department chair. Plaintiff’s Amended Complaint consists 19 counts covering 628 paragraphs and more than 75 pages. It asserts a range of statutory discrimination. Defendant is also subject to hostile work environment claims. Plaintiff claims that Defendant harassed, retaliated against, and discriminated on the basis her religion, race/nationality, and age.
The overall dispute between Plaintiff and Defendant originated in what appears to have been at times a heated set of academic and philosophical contentions between Plaintiff and other faculty members at the Universityand Plaintiff broadly alleges that this dispute has infiltrated Defendant’s administration, the administration’s decision making, and the student body….
The court allowed plaintiff access to her discrimination and retaliation claims. However, it rejected her hostile environmental claim.
[Plaintiff alleges] a hostile work environment due to Dr. Ross’s and Dr. Hines’s viewpoints or disagreements with Plaintiff on contentious geopolitical issues in the course of their academic roles at the University, leading to what Plaintiff describes as “shunning” or “evasion,” as these allegations are a focus of Defendant’s Motion…. [But plaintiff does not show]Drs. Ross or Hines or the student body held their viewpoints on these contentious issues to cause hostility directed toward Plaintiff or had and advocated discriminatory views to harm Plaintiff specifically….
Plaintiff claims that Ross held and advanced in the classroom strongly different viewpoints than those of Plaintiff regarding the Israel-Palestine Conflict and the responses to it. Ross and Hines support different political movements than Plaintiff (specifically, Plaintiff claims that Ross supported the “Boycott, Divestment, Sanctions,” or “BDS”, movement and criticize Israeli policies regarding Palestinian settlements. Plaintiff believes that those viewpoints are anti-Semitic, and therefore, is targeted at her. To the extent that Plaintiff alleges that Dr. Ross “used his position” to espouse a BDS-based or related agenda in the classroom where he taught and created a hostile work environment for Plaintiff in doing so, the Court would observe that there are competing assessments of the basis for such views…..
Plaintiff has not demonstrated that Defendant made Plaintiff feel hostile by not protecting Plaintiff from the views and academic interests of some professors and students who are involved in these geopolitical issues. The record doesn’t support a “showing” of that. DefendantCreated an objectively hostile work environment For PlaintiffPlaintiff’s position as a reasonable employee. Plaintiff allowed controversial theories and ideas to be discussed in class with students and professors. Plaintiff’s allegations are a strong and fundamental disagreement with the views and public actions she attributes to Drs. Ross and Hines, manifesting mainly in actions outside the classroom, including participating in protests, posting content on social networks, and her disagreement about allegedly related views to and the speech and actions taken by Point Park students regarding the same issues.
Plaintiff believes that Drs. Hines and others have advanced these ideas and concepts. Ross and Hines, and by students, make Plaintiff an outcast due to her strong opinions and her race and religion. In the Court’s judgement, however, it would be too much. This would make Ross and Hines and other students inherently an outcast because it would invalidate as well as Title VII grounds, an entire academic or public debate, and give Plaintiff a veto on others participating in the same debate. It would effectively require, as Title VII liability, that any speech or viewpoints held by others in that debate and that are not Plaintiff’s view on the topic be reformulated to conform to Plaintiff’s views.
{Plaintiff claims that the way she was treated at work was part a coordinated movement by BDS activists to discriminate against the plaintiff due to her Israeli citizenship, Jewish faith, and her support for Israel in the Israel/Palestine conflict. Plaintiff alleges that Dr. Ross supports BDS, and that students may also support it (given, for instance, their participation in protests related thereto). The Court observed that these allegations are based on core disagreements between individuals who have different opinions on a topic undergoing intense political debate.
Such disagreements on a contentious geopolitical conflict do not in and of themselves form the basis of a hostile work environment claim ….. If that were the case, then the fair work practice laws invoked by Plaintiff would be a parking brake on academic and public debates over those highly contentious topics. It would also tip the scales irrevocably in favor Plaintiffs view on those topics.
In summary, Plaintiff’s position has the obvious and probable consequence that academic employment places will encourage the BDS movement or any other criticism of Israel’s actions by students or faculty members. Per seIt is illegal to discriminate on the basis or race, national origin, religion, and that this, as a matter law, creates an objectively hostile working environment. The Court does not know of any case law supporting this position.
The Court recognizes the contentious nature and arguments surrounding BDS, including the position of some, including Plaintiff. She argues that BDS activities are, by definition, anti-Semitic simply because they exist and articulate, and that their presence in her workplace constitutes unlawful discrimination. Plaintiff, for example, claims that “Israeli and Jewish scholars have been subjected [to prejudice, shunning and exclusion on campuses by BDS Proponents in this Country and abroad]”. She also cites scholarship in her Response of Defendant to Motion to Dismiss that asserts that BDS, specifically any academic boycott against Israel and Zionist voices in higher education, is necessarily antisemitic conduct and that it is directed at her by its very existence, thus generating Title VII liability.
Plaintiff’s attempt to describe support for these topics (or advocacy contrary to the Israeli government’s position) by Dr. Ross, Hines and certain students at Point Park University as unlawful discrimination, along with the fact that academic discussion about BDS at Point Park University, are inherently severe, constitutes a hostile work environment claim of discrimination against her without legal support. The Court is not aware of any case that draws that conclusion, and the parties did not advance any. Furthermore, the actions of students and academics on other campuses are not relevant to the issues raised by the asserted claim in this case.
Thus, no matter the divisiveness of the debate surrounding the BDS movement (or other philosophical viewpoints parallel to the BDS movement’s opposition to the actions of the Israeli government) nor the validation of Plaintiff’s point of view by some but not all engaged in the academic debate outside of the Defendant’s campus and workplace, the Court cannot conclude that association with BDS statements and principles that is not directly and specifically targeted at Plaintiff by and among Defendant’s professors and students objectively could create a hostile work environment claim against Defendant.}
