by Mark Schickman

Have you ever noticed the OU symbol on hundreds of food labels in your supermarket, from ketchup to pasta to bread? That means the food was produced under the rabbinic supervision of the OU, the largest profit-making supervisor of kosher foods in America. You might think that one of its kashrut inspectors would have the legal right to sue the OU for unpaid wages or overtime—but no, he wouldn’t have a prayer.

He says this Food is Kosher!

From 2011 to 2018, Yaakov Markel, an Orthodox Jewish man, worked for the Union of Orthodox Jewish Congregations of America (OU) as a mashgiach. A mashgiach is an inspector appointed by a board of Orthodox rabbis to guard against any violation of the Jewish dietary laws—colloquially known as “keeping kosher.”

OU is organized as a not-for-profit corporation, whose mission is to serve the Orthodox Jewish community. It supports a network of synagogues, providing religious programming, advocacy, and youth programs. One of OU’s primary activities in service to its member synagogues is ensuring that kosher food is widely available. To that end, it runs the largest kosher certification program in the United States. That program provides most of OU’s revenues.

Markel was responsible for the kosher integrity of grape products at two wineries. Grape products are unique in Jewish dietary law because—to be kosher— only Orthodox Jews can handle them until they are mevushal (sufficiently cooked or boiled). To qualify to serve as a mashgiach, Markel needed to submit a letter from an Orthodox rabbi certifying that he was Sabbath observant, to be knowledgeable about kosher law, and to be reliably compliant with those laws.

After several years, Markel’s relationship with OU soured. He claims his supervisor promised him a promotion and a raise. He allegedly received neither. He also claims that OU withheld from him certain compensation for overtime. OU, in turn, disputes that he was denied any owed compensation.

Markel resigned and filed suit, making wage and hour and fraud and misrepresentation claims against both the OU and his supervisor. They asked the court for summary judgment (dismissal in their favor without a trial), invoking the ministerial exception to block the lawsuit in its tracks.

What is the Ministerial Exemption?

The First Amendment to the U.S. Constitution prohibits any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Religion Clauses collectively protect the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” From this general principle of church autonomy stems the “ministerial exception,” which precludes the application of laws governing the employment relationship between a religious institution and certain key employees.

The ministerial exception protects a religious institution’s autonomy with respect to internal management decisions, which includes the selection of the individuals who play key roles. Any attempt to dictate or even influence such matters would constitute one of the central attributes of an establishment of religion. Thus, the Religion Clauses require deference to a “religious institution’s explanation of the role of its employees in the life of the religion in question.”

As a result, “it is impermissible for the government to contradict a church’s determination of who can act as mission-critical employees. Courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.” The ministerial exception encompasses all adverse personnel or tangible employment actions between religious institutions and their employees and disallows lawsuits for damages based on lost or reduced pay. By its terms, the rule permits no exceptions. It is categorical.

Markel Meets Two Prong Ministerial Exemption Test

The ministerial exception applies only to disputes between “religious institutions” and their “ministers.” So, is the OU a religious institution and, if so, is Markel a ministerial employee? The court answered both questions in the affirmative.

Markel argued that OU is not a religious organization because its kosher food certification program turns a profit and because OU competes with other for-profit kosher certification companies in the market. But the act of profiting or competing with for-profit companies didn’t make the OU nonreligious for purposes of the ministerial exception in this case.

OU’s articles of incorporation show it was organized to support the Orthodox Jewish community. Its activities primarily serve this purpose, including by providing religious programming to its community of synagogues to “promote traditional, or Orthodox, Judaism worldwide.” It provides youth and teen programs and educational services to special-needs students and holds itself out to the public as a religious organization.

Having decided that OU is a religious organization, the court had no trouble deciding that Markel was a minister for First Amendment purposes. The U.S. Supreme Court hasn’t adopted a rigid formula for deciding when an employee qualifies as a minister, but under its guidance, the court here read the term broadly.

Root Constitutional Freedom of Religion

The First Amendment’s fundamental purpose was to disentangle government and religion—to prevent excessive entanglement between church and state. It was drafted under the backdrop of the established Church of England, over which the King of England and Parliament exercised significant control, not only in matters of personnel but also in matters of doctrine and worship. The ministerial exception was designed to be robust enough to disallow the government, including the judiciary, from ever parsing out or defining for any religion what its beliefs or practices are.

Here, OU represents it to be generally recognized within Orthodox Judaism that a mashgiach fills a key role in helping Orthodox Jews keep kosher, a practice of their religion. This representation touches on Jewish beliefs, Jewish law, and Jewish practices—“keeping kosher.” Since OU’s representation concerns its “orthodoxy,” this ends judicial inquiry into whether OU’s practices are central to its religious mission. Any other approach would permit the government to involve itself in matters of a religion’s orthodoxy.

The Supreme Court explained that “it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. . . . And an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission.” The ministerial exception lies so close to the heart of the church that it would offend the Free Exercise Clause to require the church to even articulate a religious justification for its personnel decision.

Having determined that Markel was a ministerial employee, the court held that OU wasn’t required to provide a religious reason for its actions, and the ministerial exception bars all claims he filed against either OU or its leadership. Markel v. UOJCA (9th Cir., 2355088 12/30/24).

Bottom Line

The protections recognized in OU’s favor do not apply to every employee. Likely an organization’s janitorial staff, parking lot attendants, bus drivers, etc., would not fall within the ministerial exemption. Cases have applied the protection to claims filed by religious school teachers—even those without any spiritual training or title—teaching secular courses. Certainly, any member of the clergy, choirmaster, or teacher of religious subjects would be barred from suing their institution.

Here, as the concurring opinion put it, “As a head mashgiach who ensured the kosher certification of grape products, Yaakov Markel’s work was essential to the spiritual mission of his employer, the Orthodox Union [whose] purpose is to promote and serve the Orthodox Jewish community, including by fostering a central tenet of Orthodox Jewish faith—the observance of dietary laws.” The decision of whom to hire, promote, or fire as a “head mashgiach” is as central to the First Amendment prohibition as it comes.

It’s a harsh result that this root constitutional principle protects against not only claims of hiring, firing, or discrimination but also to claims of unpaid wages and overtime. But as the court noted, as a nation founded on the principles of religious freedom and the elimination of entanglement between church and state, the constitutional bar against a ministerial employee suing a religious organization is absolute.

Mark I. Schickman is Editor of the California Employment Law Letter and the founder of Schickman Law in Berkeley, California. Mark has successfully litigated almost every type of employment case in the courts before juries and administrative agencies and on appeal and is a popular and engaging trainer providing employment advice to employers across the country. He can be reached at Mark@SchickmanLaw.com.