The case of Susan Abeles, an Orthodox Jew who claims she was disciplined by the Washington, D.C., airport authority for observing Pesach, was heard by the United States Court of Appeals for the Fourth Circuit in Richmond, Va., last Thursday.
After returning to work following the final days of Pesach in March 2013, Mrs. Abeles was informed that her time off had not been requested in a manner consistent with company procedure, and that she was being suspended for five days as a punitive measure for being “AWOL [absent without leave].” Mrs. Abeles claims that the steps she followed were consistent with how she had requested time off for all of her 26 years at the Metropolitan Washington Airport Authority (MWAA) and that she was refused her legal right to religious accommodation. Ultimately, the alleged violation was used to force her into early retirement.
“This was an ambush,” argued noted attorney Nathan Lewin, who is representing Mrs. Abeles. He told justices that the airport’s “failure to accommodate [Mrs. Abeles’s religious needs] is punishing her for following the procedure that she followed for 26 years.”
Judge J. Harvie Wilkinson III questioned Mrs. Abeles’s claim that the incident was based on unwillingness to allow for religious observance, saying that the MWAA had “26 years of a near spotless record [vis-à-vis the plaintiff].”
However, in his closing remarks, Mr. Lewin addressed the concern, saying, “You can say, ‘We have a wonderful record with blacks, we have a vice president who’s black,’ that does not excuse you for denying a civil rights claim.”
MWAA attorney Bruce Heppen focused on Mrs. Abeles’s failure to follow official procedures for time-off requests and denied discrimination claims, saying repeatedly that there “is no conflict between [MWAA] policy and religious observance.”
Judges equally scrutinized both sides, with Judge Dennis Shedd pressing Mr. Heppen to move beyond defending the company’s actions with official procedures and asking “what was the practice of the shop,” adding later in the arguments that “the employer does not have a completely clean hand in this case.” Judge Shedd repeatedly challenged Mr. Lewin’s line of attack as well, asking at one point, “Where is there any evidence here that this has anything to do with her religion?”
During the intense period of questioning, members of the three-judge panel seemed open to the idea that the plaintiff had been treated unfairly, but questioned whether the case could be classified as religious discrimination.
Mr. Lewin insists that his client’s claim has broad implications for all shomrei Shabbos in the workplace.
“This is the clearest case I have ever seen of deliberate punishment for not being at work on Shabbat or Yom Tov,” he told Hamodia. “If Ms. Abeles may lawfully be punished for having not been at work on the last days of Pesach, no shomer Shabbat employee can ever be safe from discriminatory punishment for an absence for religious reasons.”
Aside from his extensive experience in such cases, Mr. Lewin was the author of the provision of the Civil Rights Act of 1964 protecting Sabbath observers in the workplace, the basis of his client’s suit.
A spokesman for MWAA told Hamodia that the organization would not comment on “ongoing litigation.”
After the case was first introduced, a district judge dismissed Abeles’s suit and denied her right to a jury trial that would allow for “discovery” of factual evidence in the case.
“Part of what makes this case interesting and frustrating is that a lot seems to turn on facts that the court doesn’t know because there was never discovery, which is what should happen now,” attorney Meir Katz, who authored a brief on behalf of Mrs. Abeles for the National Jewish Commission on Law and Public Affairs (COLPA), told Hamodia. Based on the line of questioning from justices, he was “optimistic” that the case would indeed be returned to lower courts for a jury trial, which is what Mrs. Abeles is now asking the appeals court to do.
Mr. Katz said that the way the court rules on Mrs. Abeles’s claim could have far-reaching implications.
“Employers can mask religious discrimination in many ways, such as following procedures that look very neutral. It’s very common and that’s why the Orthodox community has to be concerned, especially in a world that is increasingly hostile to religion in general,” he said.
Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty, also submitted a brief on Mrs. Abeles’s behalf.
“Everybody basically understands today that you’re not supposed to discriminate, so courts have to be attuned to it happening in more disguised ways,” he told Hamodia. “Eruv cases work very similarly. People say, ‘Well, we don’t want these wires all over,’ but they understand very well that preventing an eruv from being built is a very good way of keeping out Orthodox Jews.”