In Markel v. Union of Orthodox Jewish Congregations, (9th Cir., Dec. 30, 2024), the U.S. 9th Circuit Court of Appeals held that the ministerial exception requires dismissal of a suit alleging wage and hour violations as well as fraud and misrepresentation brought by a mashgiach (kosher food inspector) against the kosher certification agency that employed him. Plaintiff alleged that he never received a promotion and raise that were promised to him and certain compensation for overtime. The court concluded that defendant, the Orthodox Union, is a religious organization and that plaintiff Markel is a "minister." saying in part:
... [I]f OU is a religious organization and Markel is its minister, the exception applies to Markel’s claims, which are all employment related. We address each in turn....
Because only observant Orthodox Jews can serve as a mashgiach for the OU, and because they are necessary to carrying out OU’s religious mission of “ensuring the wide availability of kosher food,” a mashgiach is a minister for purposes of the ministerial exception....
... Markel invites us to create a rule that if a religious purpose did not animate the relevant employment decisions, then the ministerial exception should not apply, and the case should be allowed to proceed to discovery....
Markel’s argument raises two separate, but related issues. First, can issues involving a religious institution ever be bifurcated into being either “religious” or “non-religious?” And second, does a religious institution need to identify a “religious” justification for its employment related decisions to invoke the ministerial exception? The answer to both questions is no....
... Since the same constitutional harm looms regardless of whether an employee-plaintiff’s employment-related claims are against the religious organization or its leaders, we hold that the ministerial exception protects both....
Judge Sanchez filed an opinion concurring in part and concurring in the judgment. Reuters reports on the decision.
