The Court of Appeals has affirmed the New York Appellate Division Second Department’s decision upholding a Reform temple’s right to fire a teacher who had written an anti-Zionist blog post. The teacher had appealed a decision by the New York Supreme Court in Westchester County in favor of the temple.
Plaintiff Jessie Sander wrote a blog post that criticized Israel’s May 2021 airstrikes on Gaza and warned that it was dangerous to conflate anti-Zionism with antisemitism. Westchester Reform Temple had sent Sander an offer letter before her post, but she had not started teaching yet. In an awkward Zoom exchange that summer, the temple’s rabbi pointed out Sander’s blog post and asked how comfortable she would feel working for a Zionist temple. Sander replied that she would not allow her personal views to interfere with her work for the temple and that she understood that the national Reform movement was also Zionist. According to the complaint, the temple’s rabbi expressed complete confidence in Sander’s ability to do her job. Nevertheless, Sander was terminated one week later.
In its decision in Sander v. Westchester Reform Temple, the Court of Appeals did not address whether or not the plaintiff’s blog post was protected speech under New York’s Labor Law § 201-d in light of the fact that she was a teacher of religion. This legislation, passed in 1992, makes it illegal to fire an employee for engaging in protected activities. There is an exception for activities that “create[] a material conflict of interest related to the employer’s trade secrets, proprietary information, or other proprietary or business interests.” To plaintiff, her blogging, which was critical toward Israel, was merely a “hobby” outside of work.
A 2023 amendment to the New York statute added an exception to Title VII of the Civil Rights Act to allow religious corporations to limit employee speech where the employee performs work connected with the religious corporation. However, that provision was enacted after this case was brought and was not in play here.
Sander’s assertion in her complaint that she was not a religious teacher for the temple was “conclusory,” the Court found. Sander’s responsibilities included teaching parsha and furthering the temple’s “mission,” by “support[ing] the development of a strong Jewish identity.” As a teacher of religion (a “minister”), Sander’s speech was not protected where it interfered with the temple’s mission; additionally, court involvement would undermine the right of religious institutions to hire and fire ministers, which would violate the Establishment Clause of the U.S. Constitution. “Plaintiff’s claim is barred by the ministerial exception, which precludes application of employment discrimination laws to claims involving an employment relationship between a religious institution and its ministers,” the Court wrote.
The lower courts had found that Sander was fired for the content of her post without addressing whether blogging is a protected “recreational” activity under New York Labor Law. That issue will have to be addressed by the courts or the legislature at a later time. The high court found that Sander’s offer letter stated that her teaching responsibilities would be religious in nature. As such, it affirmed her firing on this ground.