Plaintiff who was fired for blogging on Gaza loses under the "ministerial exception"

There is a funny little statute in New York that says you can't fire someone because of their recreational activity. But "recreation activity" does not carry a definition.What it does even mean? The statute is not clear. This case was a good vehicle for resolving that issue because the plaintiff in this case was fired after she posted a blog entry on recent events in Israel/Gaza. Is blogging recreational activity under the Labor Law? If so, the question is whether management can fire you for making controversial statements that might reflect poorly on the employer, especially a defendant like this, a Jewish entity.

The case is Sander v. Westchester Reform Temple, issued by the New York Court of Appeals on December 16. The Court of Appeals does not address whether the plaintiff's blogging was recreational activity under the statute. Instead, it finds that the defendant is immune from liability under the "ministerial exception," a judge-made doctrine that says courts cannot resolve employment disputes like this. As the Court of Appeals summarizes this doctrine, quoting from Supreme Court rulings,

That exception "precludes application of [employment discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers." Requiring a religious institution "to accept or retain an unwanted minister, or punishing [them] for failing to do so" both "infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments" and "violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions."

The question, then, is whether the plaintiff was a "minister" under the statute. While plaintiff was not a minister in the traditional sense (imagine someone preaching to the choir), under Supreme Court authority, a minister includes anyone at the religious organization who teaches religious principles. The Court holds, "She was responsible for teaching religious texts through one-on-one study and weekly Torah portions, as well as planning and attending religious programming. Those duties leave little doubt that she was charged with 'educating young people in their faith.' Although Plaintiff counters that her responsibilities were 'secular rather than religious,' that allegation is conclusory, limited to a single paragraph in her complaint, and plainly untenable from the face of the offer letter."

Judge Rivera concurs, agreeing that the case should be dismissed but for different reasons. This may be the most extensive discussion on the statute from a high-level judge that we've ever had. Lawyers will use Judge Rivera's analysis in the future. Ultimately, Judge Rivera says, plaintiff would lose under the statute under the conflict-of-interest exception, defined this way: "the 'material conflict of interest' exception applies even when an employee does not receive a financial benefit from their activity. What matters is whether and how the activity affects the employer's business interest, which includes how the business is perceived within the relevant community and whether the employee's activity places the business and its mission in a negative light." Under this exception, plaintiff would lose: 

Plaintiff espoused a viewpoint (i.e. anti-Zionism) at odds with her employer's "philosophy" (i.e. Zionism) and its mission.Thus, as the Temple asserts, plaintiff's publicly posted assertions and opinions directly undermine the Temple's business interest as a synagogue, as some congregants may view Zionism as a feature of their religious or ethnic identities as Jews. Additionally, Sander's presence as a Jewish educator of children could invite a backlash among at least some of her students' parents due to her anti-Zionist views. If the Temple were to lose membership en masse, its proprietary or business interests—even as a nonprofit—would inevitably suffer. The fact that plaintiff gained no financial benefit from her blogging does not diminish or eliminate the conflict of interest that exists here. ... [T]he conflict of interest arose solely out of the potential reputational harm to the employer resulting from the employee's conduct.