Court ruling on Sabbath seen as ‘huge problem’

A federal court ruling involving a New Jersey bus driver could have troubling implications for Jewish workers who observe the Sabbath and other holy days, a Jewish legal scholar warned.

On July 16, a three-judge panel of the Third Circuit Court of Appeals upheld NJ Transit’s decision to fire a born-again-Christian bus driver who refused to work on Sundays.

The court agreed that granting the driver’s request for Sundays off “would have placed an undue hardship” on the transit agency.

Marc Stern, associate general counsel for legal advocacy at the American Jewish Committee, said the ruling muddied the waters for Jewish job applicants who do not work on Shabbat.

“It is a huge problem for observant Jews,” said Stern.

At the center of the case is Roger Fouche (pronounced Foo-shay), a Hainesport resident. Fouche was a part-time bus driver for NJ Transit who, after accepting a full-time position, sought to be excused from driving on Sundays, the Christian Sabbath.

In March 2008, three months after taking the full-time job with the state-run transportation company, he was dismissed.

Fouche sued NJ Transit in Federal District Court in Newark, arguing his firing was illegal under the federal Civil Rights Act of 1964 and the New Jersey Law Against Discrimination. The trial court rejected his claim.

Last month, the appeals court upheld that ruling. It accepted NJ Transit’s assertion that Fouche knew about the Sunday assignments when he took the job and that allowing him the day off would have breached the seniority provision of the union’s collective bargaining agreement.

“Fouche’s good faith in taking a full-time position with New Jersey Transit is questionable because when he took that position he surely knew or should have known from his prior part-time employment with New Jersey Transit that its drivers ordinarily are sometimes assigned Sunday driving duties,” the judges ruled.

According to that reasoning, Stern complained, “Sabbath-observant job applicants are not acting in good faith if you apply, even though you have a statutory right” to a day off for worship.

“That is quite astounding,” he told NJJN. “It is very dangerous.”

Stern said employers are not allowed to discriminate on the basis of religious practice, but that there are other ways to find out if a potential employee might need a special accommodation.

“In theory, it is illegal to ask straight out, ‘Are you a Sabbath observer?,’” said Stern. “But you can ask, ‘Are you available seven days a week, 24 hours a day?’”

That would weed out the Sabbath observant, unless they lie.

“I will tell you that in counseling people, it is one of the most difficult issues to deal with,” continued Stern. “You don’t like to tell people to lie, yet if they don’t lie they are never going to get a job. Now, with the Third Circuit’s comment about ‘good faith,’ the dilemma becomes even harder.”

Stern said many judges are increasingly impatient with the idea of religious accommodations. “The environment is not friendly anymore,” he said.

In a July 26 e-mail to NJJN, Nancy Snyder, a spokesperson for NJ Transit, welcomed the appeals court ruling.

“NJ Transit’s collective bargaining agreement with our bus operators is clear,” she wrote, adding that “employees pick jobs based on seniority. The work available to Mr. Fouche included working on his Sabbath day based on his seniority.”

According to Stern, “It may or may not be that NJ Transit could accommodate this guy. I don’t have the impression they tried very hard. But what you can do is ask other employees to switch shifts with you. It would have been an available accommodation.”

But, Fouche told NJJN, “no attempt was given to me for change of shifts with other drivers. After a written notice and numerous attempts of informing of my Sabbath, I was denied by my supervisor, stating that ‘If I was given off, she would have to give others off.’”

Matthew Weisberg, the Morton, Pa., attorney who represented Fouche, told NJJN, “Our argument was they had a burden to prove that financial hardship and they did not.” The ruling “allows an employer to effectively, without proof, say something is a financial hardship so as not to have to make an accommodation.”

Weisberg said he will not ask the United States Supreme Court to review the decision, citing the “cursory manner” of the ruling.

Fouche has not yet decided whether to file an appeal.

Fouche is currently employed part-time as a postal worker while he studies for a master’s degree in divinity at the Westminster Theological Seminary in Philadelphia. He is a training minister at his church, the nondenominational Christian Cultural Center, in Brooklyn.

“I am a born-again Christian and Sundays are my Sabbath,” he told NJJN. “We believe in the scriptures of the Old and the New Testament.”