ALBANY, N.Y. - A Jewish temple was justified in firing a teacher over a blog post critical of Israel’s Gaza invasion, New York’s highest court ruled, sidestepping the question of whether blogging is a “recreational activity” protected under state labor law.
A broad exception for ministerial employees covers plaintiff Jessie Sander, who accepted a job at the Westchester Reform Temple as a “Full Time Jewish Educator,” the court said in a Dec. 16 opinion by Judge Caitlin Halligan.
Soon after taking a job at the temple in 2021, a rabbi brought up a blog post Sander had recently co-authored that criticized “israel’s most recent attack on Gaza” and said Zionism wasn’t a value of Judaism.
Sander said she assured the rabbi she respected the temple’s position on these matters and wouldn’t share her views on the job. Nevertheless, she was fired a week later.
She sued under Section 201-d of New York’s labor law, which protects employees against firing over various activities they engage in away from the workplace. The temple moved to dismiss, saying her post wasn’t a “recreational activity” as defined under the law and her claim was also barred under the ministerial exception.
The Supreme Court – in New York, a trial court – dismissed the case because she was fired for the content of her blog, not the act of blogging. The court didn’t consider whether it was a recreational activity. The Appellate Division affirmed and the Court of Appeals, New York’s highest court, agreed to hear the case and affirmed the dismissal.
Legislators passed the labor law in 1992 to "ensure that employers do not tell us how to think and play on our own time," the high court observed. But “the legislative history sheds little guidance on what qualifies as a recreational activity, and reveals no consideration of whether, or to what extent, the statute protects expression generated in the course of what is determined to be a protected recreational activity.”
Luckily, there’s need to decide since the ministerial exception applies, the court said. Previous decisions have established “no rigid formula, but found religious instructors need not hold an official title or even have formal religious instruction to fall under the exception.
Sanders was responsible for furthering the Temple's "mission," including by "support[ing] the development of a strong Jewish identity" and "bringing Torah to life and inspiring Jewish dreams," the court said.
Determining if the ministerial exception applies normally is a fact-intensive inquiry, but the plaintiff only worked at the temple for three weeks and further evidence-gathering “is unlikely to yield additional facts about her job responsibilities,” the court concluded.
Judge Jenny Rivera concurred but would have gone further to find Sander’s blog posts “created a material conflict of interest” with the temple’s business interest and thus represented a firing offense under the labor law. Whether blogging is a recreational activity is a difficult question for another day, she wrote.
