Guide to Federal Statutes that Protect Jews from Discrimination

In October, the Department of Transportation issued its largest penalty ever, for $4 million,  against Lufthansa for discriminating against Jewish passengers who were traveling from New York City through Frankfurt to Budapest in May 2022 1. This historic and important settlement shows the value of federal statutes, including but not limited to Title VI, as a way to protect Jews from discrimination.

Title VI of the U.S. Civil Rights Act prohibits discrimination on the basis of race, color or national origin by recipients of federal funds. Federal agencies have the ability to withhold funds should discrimination occur without redress. For example, the Department of Education has the authority and responsibility to take steps, up to and including the withholding of federal funds, if a school does not address an issue of discrimination.

Because Title VI does not bar discrimination on the basis of religion, it has been determined that Jews (and Muslims and Sikhs, for example) are covered when they are targeted because of their religious/ethnic identity. Absent this understanding, Title VI wouldn’t be able to address antisemitism in any form.

The U.S. National Strategy to Counter Antisemitism, released in May, places consistent emphasis on the need for federal cabinet departments, regulatory agencies and other actors to enforce the policies underlying Title VI of the Civil Rights Act. Specifically the Strategy calls on federal agencies to affirm that TItle VI applies to them:

• Eight agencies—USDA, DOL, HHS, the Department of Housing and Urban Development (HUD), DHS, DOI, the Department of Transportation (DOT), and Treasury—will produce fact sheets explaining that Title VI of the 1964 Civil Rights Act prohibits discrimination based on shared ancestry or ethnic characteristics, including certain forms of antisemitic, Islamophobic, and related forms of discrimination and bias, in federally funded programs and activities. This will be the first time these agencies have recognized in writing that Title VI prohibits such forms of discrimination in their federally funded programs and activities.  (By September 2023)

These fact sheets 2 clarifying that antisemitic discrimination and bias is included in Title VI are
welcome and significant.

In addition to Title VI, there are additional federal statutes that should be highlighted and considered as they specifically state that discrimination based on religion is prohibited. 

By compiling various authorities here in this non-exhaustive list, we hope to draw the attention of numerous federal agencies to other authorities that may be available to them. There are more opportunities to prohibit discrimination against Jews than what is in Title VI alone.  

Certain statutory provisions apply to all U.S. government programs, and in those instances, all regulatory agencies and cabinet departments are regulated by its provisions.

1. 5 U.S.C. § 2301 – Merit system principles: Requires all executive agencies and the U.S. Government Publishing Office to provide all employees and job applications fair and equitable treatment in all aspects of personnel management without regard to religion.
2. 5 U.S.C. § 2302 – Prohibited personnel practices: Prohibits any employee of any federal agency who has the authority to make personnel actions from discriminating on the basis of religion.
3. 5 U.S.C. § 7201 – Anti Discrimination policy; minority recruitment: Declares the U.S. policy of ensuring equal civil service employment opportunities for employees without discriminating on the basis of religion, and provides enforcement authority to the President.
4. 42 U.S.C. § 2000e-16 – Employment by Federal Government: Prohibits all federal agencies, including the military, the US Postal Service, government entities in Washington D.C., and the federal judicial branch, from making personnel decisions that discriminate on the basis of religion.
5. 42 U.S.C. § 2000bb – Free Exercise of religion protected: Prohibits any agency, department, or U.S. official from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
6. 42 U.S.C. § 2000a  – Public Accommodations: Requires full and equal enjoyment and use of places of public accommodation without discrimination or segregation on the ground of religion, and provides enforcement authority to the Department of Justice.
7. 42 U.S.C. § 2000cc – Protection of land use as religious exercise: Prohibits all branches of federal, state, and local governments from imposing or implementing land use regulations that impose a substantial burden on the religious exercise of a person.

Other statutory provisions apply to some, but not all, regulatory agencies and cabinet departments. These sometimes sweep more broadly than Title VI and often apply whether or not a person engaged in antisemitic conduct is a recipient of federal funding, some of these authorities also provide for private engagement. For example:

1. 15 U.S.C. § 1691 – Scope of prohibition: Prohibits religious discrimination in credit transactions.  This statute regulates the Federal Trade Commission, the Consumer Financial Protection Bureau, the Comptroller of Currency (under the Department of Treasury), the Federal Reserve Board, and the Federal Deposit Insurance Corporation.  Additionally, the Department of Justice has general civil enforcement authority, and the Department of Housing and Urban Development has civil enforcement authority over residential credit transactions.
2. 12 U.S.C. § 3106a – Compliance with State and Federal laws: Prohibits foreign banks and foreign commercial lending companies that conduct operations in the U.S. from discriminating on the basis of religion, and imposes obligations on both the Federal Reserve Board and the Comptroller of the Currency, which is situated within the Department of Treasury, to regulate those foreign institutions.
3. 42 U.S.C. § 3604–05  – Housing Discrimination: Various statutes that prohibit religious discrimination in connection with real estate and housing provide civil enforcement authority to both the Department of Housing and Urban Development and the Department of Justice.
4. 10 U.S.C. § 1034 – Retaliation: Prohibits retaliation against a member of the armed forces or coast guard for reporting religious discrimination to a member of Congress, or the Inspector General of the Department of Defense or the Department of Homeland Security.

Department of Housing and Urban Development

1. 42 U.S.C. § 3604 – Discrimination in the sale or rental of housing and other prohibited practices: Prohibits private and public landlords and property owners from discriminating on the basis of religion in the sale, rental, or advertisement of properties.  Violations are investigated by the Office of Fair Housing and Equal Opportunity, with additional civil enforcement authority granted to the Department of Justice.
2. 42 U.S.C. § 3605 – Discrimination in residential real estate-related transactions: Prohibits any person or entity from discriminating on the basis of religion when engaging in residential real estate transactions.  Violations are investigated by the Office of Fair Housing and Equal Opportunity, with additional civil enforcement authority granted to the Department of Justice.
3. 31 U.S.C. § 6711 – Prohibited discrimination: Prohibits units of local government that receive general assistance federal funding under the act, including the Local Government Fiscal Assistance Fund, from discriminating on the basis of religion, and requires the Secretary of Housing and Urban Development to make agreements with local agencies to investigate noncompliance with the act.

Department of State

1. 22 U.S.C. § 6411 – Office on International Religious Freedom; Ambassador at Large for International Religious Freedom: Establishes the Office on International Religious Freedom within the Department of State.  The Office’s mandate is to advance the right to freedom of religion abroad.
2. 22 U.S.C. § 6401 – Findings; policy: Declares the U.S. policy of condemning violations of religious freedom, and the U.S. policy of promoting and assisting other governments in the promotion of religious freedom.
3. 22 U.S.C. § 2755 – Discrimination prohibited if based on race, religion, national origin, or sex:  Declares the U.S. policy of not conducting defense transactions or agreements with foreign countries that prevent U.S. persons, on the basis of religion, from participating in defense services or agreements; prohibits the U.S. from discriminating against U.S. persons on the basis of religion in order to support a defense agreement with a foreign country that discriminates on the basis of religion; requires that each contract entered into in accordance with the act shall contain a provision requiring that the U.S. may not take into account that country’s discriminatory religious policies when assigning personnel to work with that country; requires the President to report to the House any instance where a U.S. person is prevented by a foreign government, on the basis of religion, from participating in defense services or agreements.
4. 22 U.S.C. § 2314 – Furnishing of defense articles or related training or other defense service on grant basis: Declares the U.S. policy of not providing assistance to any foreign country that prevents U.S. persons, on the basis of religion, from participating in defense services or agreements; prohibits the U.S. from discriminating on the basis of religion when assigning personnel to work with a foreign country that discriminates on the basis of religion; requires each contract entered into in accordance with the act shall contain a provision requiring that the U.S. may not take into account another country’s discriminatory religious policies when assigning personnel to work with that country to perform functions pursuant to the act; requires the president to report to the House any instance where a U.S. person is prevented by a foreign government, on the basis of religion, from participating in the furnishing assistance for defense.
5. 22 U.S.C. § 3905 – Personnel actions: Requires the Secretary of State to administer and prescribe regulations that are necessary to ensure members and applicants of the foreign service are free from discrimination on the basis of religion.
6. 22 U.S.C. § 6412 – Reports: Requires the Secretary of State to submit an annual report to Congress that outlines the status of religious freedom in every foreign country.
7. 22 U.S.C. § 2679c – Prohibition on discriminatory contracts: Prohibits the Department of State from entering into contracts with any foreign or U.S. person that discriminates in the award of subcontracts on the basis of religion.

Equal Employment Opportunity Commission

1. 42 U.S.C. § 2000e-2 – Unlawful employment practices: Prohibits employers, employment agencies, and labor organizations from discriminating on the basis of religion in hiring and employment practices.
2. 42 U.S.C. § 2000e-3 – Other Unlawful employment practices: Prohibits employers, employment agencies, and labor organizations from discriminating on the basis of religion in employment advertising.
3. 36 U.S.C. § 220522 – Eligibility requirements: Prohibits amateur athletic competitions from discriminating on the basis of religion and requires that they provide equal opportunity, without regard to religion, for amateur athletes, coaches, trainers, managers, administrators, and officials, to participate in amateur athletic competitions.

Department of Labor

1. 15 U.S.C. § 3151 – Nondiscrimination: Prohibits excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits funded under the act, including programs directed toward increasing full employment and balanced growth.
2. 29 U.S.C. § 3248 – Nondiscrimination: Prohibits excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits funded under the act, including federal workforce innovation and opportunity programs.

Department of the Treasury

1. 42 U.S.C. § 6727 – Nondiscrimination: Prohibits units of local government that receive funding under the act, including public works and antirecession funding, from denying benefits or discriminating on the basis of religion.
2. 31 U.S.C. § 6711 – Prohibited discrimination: Prohibits units of local government that receive funding under the act, including general assistance funding, from denying benefits or discriminating on the basis of religion.
3. 12 U.S.C. § 3106a – Compliance with State and Federal laws: Prohibits the Comptroller of the Currency, which is situated within the Department of the Treasury, as well as state governments, from approving a foreign bank’s application to operate if that foreign bank discriminates on the basis of religion.

Department of Justice

1. 34 U.S.C. § 10228 – Prohibition of discrimination: Prohibits excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits funded under the act, including federally funded criminal justice programs and programs that receive federal law enforcement assistance.  Provides the Department of Justice civil enforcement authority, and permits the Office of Justice Programs to suspend further payment of funds once the Department of Justice alleges a violation of the act.
2. 34 U.S.C. § 20110 – Administrative provisions: Prohibits excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits funded under the act, including the Crimes Victim Fund.
3. 34 U.S.C. § 12291 – Definitions and grant provisions: Prohibits excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits funded under the Violence Against Women Act.
4. 42 U.S.C. § 2000a  – Public Accommodations: Requires full and equal enjoyment and use of places of public accommodation without discrimination or segregation on the basis of religion, and provides enforcement authority to the Department of Justice.

Department of Education

1. 42 U.S.C. § 2000c – Public Education: Various provisions authorize funding for schools, states, and municipalities to render technical assistance, funding, grants, and training for schools to implement desegregation.  The act defines desegregation to mean the assignment of students to public schools without regard to their religion.
2. 20 U.S.C. § 1011 – Anti Discrimination: Prohibits institutions of higher education that receive federal financial assistance from using that assistance to undertake a study or project that bars individuals from participation on the basis of religion.
3. 20 U.S.C. § 4071 – Denial of equal access prohibited: Prohibits public secondary schools that receive federal financial assistance from discriminating against students, on the basis of religion, when those students wish to conduct a meeting within a limited open forum owned by the school.
4. 20 U.S.C. § 1087tt – Discretion of student financial aid administrators: Prohibits financial aid administrators from discriminating against any borrower or applicant of student loans on the basis of religion.
5. 20 U.S.C. § 1071 – Statement of purpose; nondiscrimination; and appropriations authorized: Prohibits agencies, organizations, institutions, banks, credit unions, corporations, and other lenders that extend, renew, or insure student loans, from discriminating on the basis of religion.

Department of Health and Human Services 

(Note: Title 42 contains many statutes that prohibit religious discrimination in the distribution of social welfare funds.The following are a few representative examples.)

1. 42 U.S.C. § 708[1] – Nondiscrimination provisions: Prohibits excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits funded under the Maternal and Child Health Services Block Grant Program.  The Health Resources and Services Administration administers the grant to states. 42 U.S.C. § 290cc-33 – Nondiscrimination: Prohibits excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits connected with the Projects for Assistance in Transition from Homelessness Program.  The Substance Abuse and Mental Health Services Administration administers the program.
2. 42 U.S.C. § 300w-7 – Nondiscrimination provisions: Prohibits excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits funded under the Preventative Health and Health Services Block Grant Program.  The Center for Disease Control and Prevention administers the grant to states.
3. 42 U.S.C. § 300x-57 – Nondiscrimination: Prohibits excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits funded under the Community Mental Health Services Block Grant and Substance Abuse Prevention and Treatment Block Grant Programs.  The Substance Abuse and Mental Health Services Administration administers the grants to states.
4. 42 U.S.C. § 10406 – Discrimination prohibited:  Prohibits excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits funded under the Family Violence Prevention and Services Act.  The Administration for Children and Families administers the program.
5. 42 U.S.C. § 300a-7 – Sterilization or abortion: Prohibits public officials and authorities from requiring medical entities to perform medical procedures contrary to their religious beliefs, even if those medical entities receive funding under the Public Health Service Act, the Community Mental Health Centers Act, or the Developmental Disabilities Services and Facilities Construction Act.

The Department of Transportation

1. 49 U.S.C. § 5332 – Nondiscrimination: Prohibits excluding persons, on the basis of religion, from participating in programs or activities or being denied benefits, in connection with public transportation.
2. 49 U.S.C. § 40127 – Prohibitions on discrimination:  Prohibits domestic and foreign air carriers from discriminating against passengers and employees on flights, on the basis of religion; and prohibits state and local governments from discriminating on the basis of religion, in the use and enjoyment of private airports.

Federal Communications Commission

1. 47 U.S.C. § 151 – Purposes of chapter; Federal Communications Commission created: Creates the Federal Communications Commission, whose mandate is to make available to all people, without discriminating on the basis of religion, rapid, affordable, and efficient wire and radio communication services.
2. 47 U.S.C. § 1754 – Digital discrimination: Requires the Federal Communications Commission to adopt rules that facilitate equal access and prevent discrimination on the basis of religion in connection with broadband internet access service.
3. 47 U.S.C. § 398 – Federal interference or control: Prohibits the Public Broadcasting Service, the National Public Radio, or any other federally funded public telecommunications entities, from engaging in employment discrimination on the basis of religion.
4. 47 U.S.C. § 554 – Equal employment opportunity: Prohibits corporations, partnerships, associations, joint-stock companies, or cable system management trusts, from engaging in employment discrimination on the basis of religion.

Internal Revenue Service

1. 26 U.S.C. § 7471 – Employees – Discrimination Prohibited: Requires the U.S. Tax Court to prohibit discrimination on the basis of religion and requires the Tax Court to promulgate procedures for resolving complaints of discrimination by employees and applicants for employment.

Federal Reserve Board

1. 12 U.S.C. § 3106a – Compliance with State and Federal laws: Prohibits foreign banks and foreign commercial lending companies that conduct operations in the U.S. from discriminating on the basis of religion, and grants the Federal Reserve Board authority to promulgate rules and conduct examinations.

Department of the Interior

1. 43 U.S.C. § 1747 – Loans to States and political subdivisions: Prohibits local and state governments that receive federal funding designed to relieve the social and economic impacts of mineral development, from excluding U.S. persons from participating in or receiving benefits under this section on the basis of religion.
2. 42 U.S.C. § 2000cc – Protection of land use as religious exercise: Prohibits all branches of federal, state, and local governments from imposing or implementing land use regulations that impose a substantial burden on religious exercise.

Department of Defense

1. 10 U.S.C. § 932 – Retaliation: Prohibits, under the Uniform Code of Military Justice, the armed forces and its personnel from retaliating against a member of the armed forces for reporting religious discrimination.

Department of Veteran Affairs 

(Note: Title 36, subtitle II, titled “Patriotic and National Organizations,” prohibits many patriotic and national organizations from discriminating on the basis of religion with regard to membership selection and board roles. The following are a few representative examples.)

1. 36 U.S.C. § 21704A – Nondiscrimination: Prohibits the American Legion from discriminating on the basis of religion.
2. 36 U.S.C. § 80504 – Membership: Prohibits the Gold Star Wives of America from discriminating on the basis of religion.

Department of Commerce

1. 47 U.S.C. § 1726 – General provisions: Prohibits the Department of Commerce from excluding U.S. persons, on the basis of religion, from participating in programs or activities or being denied benefits under the Digital Equity Act of 2021 or in connection with the distribution of funds for the provision of internet access.

Department of Homeland Security

1. 42 U.S.C. § 5151 – Nondiscrimination in disaster assistance: Requires the President to issue regulations that guide personnel providing federal assistance at major disaster and emergency sites, and requires that those regulations prohibit discrimination on the basis of religion in connection with federal disaster assistance.

A final note: This compendium does not address certain additional, potentially important questions, including: (1) whether the statute contains a private right of action that would permit the victim of a violation to seek civil redress; (2) whether establishing a violation of the statute requires proof of discriminatory intent or proof of discriminatory effect; and (3) whether the statute also expressly requires affirmative religious accommodations or exceptions to the discrimination ban. One should bear in mind these open questions when looking to these statutes for guidance.