A recent ruling by the 9th U.S. Circuit Court of Appeals has reinforced the First Amendment’s ministerial exception, shielding the Orthodox Union (OU) from a lawsuit filed by a former kosher food inspector, or mashgiach. The decision highlights the important intersection of religious liberty and employment law, particularly for roles connected to religious duties.
The lawsuit was filed by Yaakov Markel, a former mashgiach employed by the OU to oversee kosher grape production at two wineries. Markel alleged that he was denied a promotion and overtime wages before resigning in 2018. The appeals court upheld a lower court’s dismissal of the case, ruling that the ministerial exception applied because the role of mashgiach is inherently tied to the OU’s religious mission to serve the Orthodox Jewish community.
Writing for the majority, Ninth Circuit Court Judge Ryan Nelson stated, “Because only observant Orthodox Jews can serve as a mashgiach for the OU, and because they are necessary to carrying out the OU’s religious mission of ensuring the wide availability of kosher food, a mashgiach is a ‘minister’ for purposes of the ministerial exception.” He added that failing to apply the exception in this case would undermine the importance of kashrut (kosher dietary laws) in Orthodox Judaism.
Markel argued that the OU was not a religious organization because it collected revenue and profited from its kosher-certification services. However, the court rejected this claim. While the OU competed with for-profit companies offering similar services and generated financial profit, this did not negate its “religious nature.” As a 501(c)(3) nonprofit organization, the OU did not use its revenue for private benefit but, instead, directed it toward advancing its religious and educational mission, including youth, teen, and educational programming.
The appeals court also clarified that the ministerial exception defense extends to both religious organizations and their individual supervisors or leaders named in employment-related lawsuits. Markel named his former supervisor as a defendant, who was equally protected under the ministerial exception, just as the OU was.
Takeaways for Employers
- Ministerial Roles Extend Beyond Clergy: Positions tied to the religious mission of an organization, even if not formally ordained clergy, may qualify under the ministerial exception.
- Clear Job Definitions Are Crucial: Clearly outlining the religious functions of roles in job descriptions can help affirm their connection to the organization’s mission.
- Religious Liberty Protections: The ruling highlights the strength of religious liberty protections for organizations, but they are a defense in lawsuits and not absolute, meaning they may not extend to all employees and all employment claims.
Religious employers should carefully assess the roles of their employees to ensure alignment with legal protections while maintaining transparency about job responsibilities.
If you have any questions about the ministerial exception, church autonomy doctrine, or any other employment law matters, please contact Michael A. Airdo at mairdo@airdowerwas.com or James C. Jansen at jjansen@airdowerwas.com.