Is Blogging a “Recreational Activity”?–Sander v. Westchester Reform Temple

In 2021, Jessie Sander was hired as a Jewish educator at the Westchester Reform Temple, located in Scarsdale, NY. Sander calls the temple a “Zionist institution.” The temple’s website still publicly espouses support for Israel. Shortly after she was hired, the temple fired Sander for a 2021 blog post she co-authored. Per the court, “The blog post said, among other things, that the authors felt compelled to “speak out against israel’s [sic] most recent attack on Gaza” and “reject[ed] the notion that Zionism is a value of Judaism.””

She sued the temple, saying that the firing violated New York Labor Law § 201–d(2)(c), which prohibits an employer from taking adverse action against an employee based on legal “recreational activities.” She argued that her blogging qualifie as a legal “recreational activity” and thus wasn’t a proper basis for firing her.

The court sidesteps that issue. Instead, the majority essentially says that religious institutions are protected by the Constitution’s Free Exercise clause, which implicitly overrides the statute. The majority says Sander, as an educator, qualified as a religious figure within the temple, even if she wasn’t clergy per se. That’s because her job included “educating young people in their faith.” The majority says it can rule on a motion to dismiss because she was employed only 3 weeks, so her offer letter provides sufficient evidence of her job duties.

This leaves open for another day whether blogging is a “recreational activity” per the statute.

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A concurring judge delves deeper into when blogging could be a recreational activity:

depending on the blog’s content, uncompensated blogging may be a recreational activity, such as blogging about a recent vacation or the best local vegan eateries. These examples describe leisure-time musings—akin to “hobbies,” a protected recreational activity under Labor Law § 201–d (1)(b)….

other types of blog content may intend to provoke strong emotional responses in a manner disassociated from any leisurely endeavor of the writer. For example, blogging the writer’s viewpoint to encourage others to take political action may not have a recreational purpose or be relaxing, fun, or entertaining; rather, it may be a convenient method for the writer to disseminate a message motivated by a sense of societal duty and responsibility….

Plaintiff’s blogging is no doubt her physical act of posting her thoughts on a certain topic on her website. However, whether plaintiff’s blogging can be characterized as a recreational activity based on its content is not as clear.

The concurring judge said that Sander’s anti-Zionist stance created a material conflict with her employer, a different exception to the law than the ministerial (Free Exercise) exception. The concurring judge favors this approach for constitutional avoidance reasons.

The concurring judge explains how Sander’s blog post constituted a conflict of interest:

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.

The concurrence is tackling the obvious substantive policy issue lurking in this case: can Jews be “anti-Zionist”? The answer, of course, is yes, but some Jews strongly reject this. So the concurrence is correct that some temple members likely would have found Sander’s advocacy troubling.

However, framing the blog post as a threat to the temple’s “business interests” is extremely problematic. Though Sander’s post might theoretically jeopardize the temple’s revenue streams, I don’t think that’s the real concern. Instead, a vocally anti-Zionist Jewish educator at a pro-Zionist temple will surely cause community strife and division in a way that may distract from or inhibit the temple’s ability to serve its members. That’s a problem regardless of the financial consequences. Thus, I think the majority opinion is on better grounds framing this as a Free Exercise issue and not a “business” conflict of interest.

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So, is my blogging a “recreational activity”? As you know, my blogging is very much a labor of love. I definitely don’t do it for the money. 🤑 I have previously detailed my meager financial benefits of blogging. Indeed, since that post, I have turned off AdSense entirely. While blogging greatly enhances my professional identity in many ways I value (and indirectly in ways that financially benefit me), if I wanted to maximize my cash flow, I would not be blogging cases like this! So let’s classify some of my blogging as a passion project, one that I am delighted to do, especially when readers like you go along for the ride with me.

A reminder that I do indeed blog about my recent vacations and local vegan eateries at my personal blog.

Case Citation: Sander v. Westchester Reform Temple, 2025 N.Y. Slip Op. 06958 (N.Y. Ct. App. Dec. 16, 2025)

For my Jewish readers: Chanukah Sameach! 🕎