Co-op Board Removes Menorah. Is it Discriminating?

Thanksgiving is almost here, which means it's time for the feuding over Christmas and Hanukkah to begin.

Right on cue, a story is unfolding at a luxury Midtown East co-op. For years the board displayed both a large Christmas tree and a menorah in the lobby during the holidays. Last year, after a new board was elected, the menorah was replaced with a smaller one by the elevator, out of sight of visitors. When a shareholder inquired about the change, the board president screamed at her that a menorah is a religious symbol, while a Christmas tree is a secular symbol that celebrates the spirit of the season. Is this board opening itself to a charge of religious discrimination?

The U.S. Supreme Court has weighed in on holiday displays in public spaces, replies the Ask Real Estate column in The New York Times, ruling that a menorah is not a religious symbol when it appears alongside a Christmas tree. But a co-op’s lobby is not a public space, so as the governing body of a private building, the co-op board has more latitude in how it decorates its lobby than City Hall does.

“Certainly what they’ve done isn’t OK, but it may not be a breach of law,” says Dennis Greenstein, a partner at the law firm Seyfarth Shaw.

Co-op and condo boards are required to act in good faith, and they cannot actively discriminate against residents. “If the co-op is placing a Christmas tree in the lobby in the spirit of the holidays, it would be unfair and discriminatory to Jewish people not to also include a menorah,” says Slava Hazin, a partner at the law firm Warshaw Burstein.

New Yorkers are protected against religious discrimination in housing by the city’s Human Rights Law. ​​When asked if the claim of the missing menorah might be covered by the law, Alicia McCauley, a commission spokeswoman, said in an email: “Absolutely. We would have to get a sense of the whole of it by speaking with everyone, and determine if there have been prior incidents. But yes, if someone were to report this to us, we would investigate.”

Citizens can file a complaint online or by phone at (212) 416-0197.

The threat of an investigation might be enough to get a board to back down. “I don’t know what kind of answer someone can give that can’t be bad," Greenstein says. "If they claim (the menorah) is religious, why isn’t the Christmas tree religious? It’s probably not the type of thing that someone who is rational wants to go through.”