Trenton, NJ – NJ Court Of Appeals Ruling May Negatively Impact Observant Jews


    Trenton, NJ – Sabbath-observant Jews may have a harder time getting an accommodation for religious observance after the Third Circuit Court of Appeals upheld New Jersey Transit’s determination to fire a born-again-Christian bus driver who refused to work on Sundays because it is his Christian Sabbath.

    New Jersey Jewish News reports ( that Roger Fouche (pronounced Foo-shay) sued New Jersey Transit following his termination. Mr. Fouche sued in Federal District Court in Newark under the federal Civil Rights Act of 1964 and the New Jersey Law Against Discrimination. The trial court rejected his claim and the appeals court upheld that ruling.

    Mr. Fouche was initially hired as a part-time driver, but upon accepting a full-time position with NJ Transit, asked to be excused from driving on Sundays. In March 2008, he was let go after just three months with the company. The appeals court agreed with NJ Transit’s finding that allowing Mr. Fouche to have Sundays off “would have placed an undue hardship” on the agency.

    NJ Transit alleged that Mr. Fouche knew he would sometimes be assigned to work on Sundays when he took the full-time position, and that granting him Sundays off would violate the seniority provision of the union’s collective bargaining agreement.

    In their July 16th opinion, the judges wrote, “Fouche’s good faith in taking a full-time position with the 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.”

    Marc Stern, associate general counsel for legal advocacy at the American Jewish Committee warned that this ruling could negatively impact Jewish job applicants who do not work on the Sabbath, calling the ruling “a huge problem for observant Jews.” He explained that while it is illegal to ask outright if someone is Sabbath observant, potential employers can ask, “Are you available seven days a week, 24 hours a day?” This would eliminate Sabbath observers from the applicant pool, unless interviewees lie.

    Stern added that judges have become less tolerant of religious accommodations and suggested that religious employees ask their colleagues to switch shifts with them, allowing for an “available accommodation.” Mr. Fouche said he was not given an option to switch his shift with another driver, and that his supervisor denied his request claiming if she gave him off, she would have to give others off as well.

    Matthew Weisberg, Mr. Fouche’s attorney, said that the ruling, “allows an employer to effectively, without proof, say something is a financial hardship so as not to have to make an accommodation.”

    For now, Mr. Fouche is employed as a part-time postal worker and is pursuing his master’s degree in divinity at the Westminster Theological Seminary in Philadelphia. His is also a training minister at the Christian Cultural Center in Brooklyn.

    He has yet to decide if he will file an appeal.

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