Consider this hypothetical: two employees at the same company file complaints about comments a coworker has made in a team Slack channel. In the coworker’s Slack, he asked a Jewish colleague to “handle the budget, since you people are good with money,” referred to a group of Jewish coworkers as “the tribe,” and joked about who “really runs” the company. The first complainant is a secular engineer who has never set foot in a synagogue and regularly enjoys bacon cheeseburgers. The second is an observant manager who keeps kosher and leaves early on Fridays. A third Jewish employee, who also saw the messages, tells HR the comments are harmless and she laughs along.

Which of these employees was harassed, and on what basis? Religion? Ethnicity? Ancestry? Most employers have no framework for answering that question, and SB 1387 is likely to bring it to the surface.

SB 1387, which takes effect January 1, 2029, recognizes Jewish identity as an ethnicity for state demographic data collection. On paper, that is an administrative change to a form. In practice, it puts the state’s imprimatur on a contested proposition: that being Jewish is not simply a religion.

Supporters argued that because state forms treat Jewish identity as purely religious, the state cannot measure disparities affecting Jewish Californians or track antisemitism, which has surged since October 7, 2023, and which tends to target Jews as a people rather than for their religious practice. Opponents, including some progressive Jewish groups, raised concerns about government data on Jews given the history of such registries, argued that the bill singles out one religion, and warned that a single checkbox flattens a diverse community. Both sides agreed that Jewish identity doesn’t fit neatly into existing categories; they disagreed about what the state should do about it.

Arguably, the law changes little about what employers are legally required to do, but it is likely to change the questions employers hear: from Jewish employees asking how their complaints will be categorized, and from HR teams and investigators deciding how to frame them. The more practical question for employers is whether the frameworks they already rely on are equipped to answer these questions.

The Law Already Treated Jews as an Ethnic Group. It Just Didn’t Say So Out Loud.

Much of the commentary on SB 1387 treats “Jewish-identity-as-ethnicity” as a new idea. In anti-discrimination law, it is not. In Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987), the Supreme Court held that Jews could sue under a civil rights law that prohibits racial discrimination, because Jews were understood as a distinct group when the law was passed. In a companion case, Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987), the Court reached the same conclusion for a plaintiff of Arab descent. The law, in other words, has long recognized that antisemitism targets people for who they are, not only for what they believe.

The statutory architecture reflects the same idea. Title VII and California’s Fair Employment and Housing Act protect not only religion but also race, national origin, and ancestry. Federal civil-rights agencies have for years described antisemitism as discrimination based on “shared ancestry or ethnic characteristics.” A Jewish employee in California could plead an ancestry claim long before SB 1387 existed.

So what, if anything, does SB 1387 change? What changes is the cultural and narrative weight behind the legal categories. Until now, an ethnicity-based framing of a Jewish employee’s claim was legally available but atypical. Investigators and HR teams tended to default to religion because it is the most familiar way of thinking about Jewish identity. Thus, while SB 1387 does not create the ethnicity framing, it helps normalize it.

That matters because the religious-discrimination frame fits antisemitism imperfectly. The stereotypes that drive most antisemitic conduct — about money, power, and control — are indifferent to whether the target keeps kosher or observes the Sabbath. A religion-only frame tends to invite narrower questions: Was the employee observant? Did the conduct relate to religious practice? An ethnicity frame brings forward a question that is often more useful: Was this person targeted because they are, or are perceived to be, Jewish?

The Investigator’s Balancing Act

The intuitive response to a more complicated identity landscape is to ask more individualized questions. Does the employee identify as religiously Jewish, ethnically Jewish, or culturally Jewish? Questions like these are not inherently problematic. In many cases, understanding how a complainant experiences and understands their own identity may provide important context regarding impact, meaning, and perception. The danger arises when participants feel that the investigation has drifted from understanding the employee’s experience to determining whether the employee is “Jewish enough” to merit protection.

Harassment and discrimination analysis does not ultimately turn on the complainant’s self-understanding. It turns largely on two things: why the respondent did what they did, and whether a reasonable person in the complainant’s circumstances would find the conduct hostile. Neither question requires the complainant to declare how observant they are, or what their Judaism means to them. FEHA expressly extends protection to people perceived to belong to a protected group, and to people associated with them. Thus, an employee who is targeted with antisemitic slurs is protected whether she is a rabbi, a secular atheist with Jewish grandparents, not Jewish at all but perceived to be Jewish, or targeted because of a Jewish spouse or family member.

In practice, both the complainant’s and the respondent’s perspectives matter. How a complainant views their own identity can shed light on why particular conduct was hurtful and what it meant in context. The respondent’s conduct itself matters too: what was said or done, whether it relied on familiar antisemitic stereotypes, and whether people were targeted because they are, or are perceived to be, Jewish.

The third employee in the opening hypothetical, who found the jokes harmless, illustrates the point. Her reaction is real and worth documenting; it may say something about how the conduct was received and how the workplace operated. But Jewish employees, like members of any protected group, often experience the same conduct differently, and an investigator will typically weigh this employee’s view alongside the others rather than treating any one reaction as decisive. The same logic applies elsewhere. Some women find blonde jokes harmless and others find them demeaning; the question is not whether every woman objects, but whether the jokes deride people based, at least in part, on gender.

When the Respondent Is Jewish, Too

It does not necessarily matter whether the respondent is Jewish. The Supreme Court has rejected the assumption that people do not discriminate against members of their own group, first in a jury-selection case, Castaneda v. Partida, 430 U.S. 482 (1977), and later in the workplace-harassment context in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). For example, if an observant supervisor belittles a secular employee as “not really Jewish,” a secular manager mocks an observant colleague’s religious practices, or a Jewish coworker trades in stereotypes about money or power, the fact that both people are Jewish does not prevent a claim. These situations can be particularly difficult to investigate, because the conduct may be presented as a good-faith disagreement about what it means to be Jewish, or as in-group humor. In those cases, the investigator’s job is not to decide who has the better claim to Jewish identity, or whether the joke was meant kindly. It is to determine whether the conduct demeaned someone because they are, or are perceived to be, Jewish, and whether a reasonable employee in that position would find it hostile.

The same focus on conduct and context offers a more defensible path through a related and increasingly common problem: workplace disputes in which political views and Jewish identity overlap, such as disagreements about Israel and Zionism. Reasonable people, including people within the Jewish community, disagree sharply about those issues, and an investigation that tries to referee them is unlikely to end well. Employers do not need to settle those debates. What matters more is whether specific conduct targeted people because of who they are.

Where DEI Frameworks Don’t Always Work

Some workplace diversity programs organize the world along a single axis: privileged vs. marginalized, often mapped onto race. Jewish employees do not sit comfortably on that axis. Many are perceived as White and are treated as beneficiaries of privilege. In some cases there is truth to that. Many also carry family histories of expulsion, genocide, and exclusion, and face a form of bigotry that frequently casts them as too powerful rather than too weak. A framework that measures oppression by perceived powerlessness can struggle to account for a prejudice built on accusations of power.

SB 1387 gives Jewish employees a vocabulary, and a state classification that better reflects how antisemitism actually operates. The practical risk for employers is less a wave of new lawsuits than a failure to address antisemitism in their policies, procedures and practices: training materials, affinity structures, and public statements that treat antisemitism as an afterthought, or omit it entirely while condemning other forms of bigotry, can become evidence of institutional indifference.

Employers need not pick a side in the debate over how Jewish identity should be classified. A more practical goal may be to avoid forcing a religion-based binary on a group that does not fit one, and to make sure antisemitism is addressed as its own phenomenon rather than squeezed into a category built for something else.

What Employers Might Consider Now

For many employers, this may call less for a policy overhaul than for recalibrating some processes.

• Audit the intake categories. If complaint forms and investigation templates route anything involving Jewish employees to “religion,” add ancestry and ethnicity as options and train intake staff not to force a single choice.
• Look at both the conduct and how it landed. Investigation plans can examine what was said, what tropes or stereotypes it invoked, and whom it targeted, alongside how the conduct was experienced, without turning the inquiry into a test of how Jewish anyone is.
• Read your training materials the way a jury would. If antisemitism is absent from bias training that addresses other forms of prejudice, or if Jewish employees are presented only as examples of privilege, rather than as a group that is also targeted by bigotry, consider revising it before it becomes an exhibit.

The Real Change

SB 1387 will not be remembered for the claims it creates, because it creates none. Its significance may be that it challenges a common misconception: that antisemitism in the workplace can only be handled as a subset of religious accommodation. That approach was always incomplete, and the law had already said as much in 1987. What California has added is a clearer public signal, one that employees and HR teams are likely to notice.

For employers, the goal is not to settle what Jewish identity is, but to build processes flexible enough to account for it: listening carefully to how employees understand their own identities, looking closely at the conduct in question, and recognizing that antisemitism does not always fit neatly into the categories workplaces have traditionally used.