Jewish group shielded from kosher inspector's work-related lawsuit, US court says

By Daniel Wiessner

Dec 30 (Reuters) - A U.S. appeals court on Monday said an inspector who ensured food products were prepared in compliance with Jewish dietary law played a religious role at the nonprofit that employed him and cannot pursue a job-related lawsuit.

A unanimous three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals said that Yaakov Markel's position as a kosher inspector, or mashgiach, was central to the Union of Orthodox Jewish Congregations of America's (OU) religious mission, shielding the group from having to face his fraud and wage claims.

The OU oversees the largest kosher food certification program in the United States and uses revenue from its services to fund synagogues, advocacy and youth programs, according to court filings.

Markel, who inspected products processed from grapes, quit in 2018 and filed a lawsuit in federal court in Los Angeles accusing the organization and his ex-supervisor of failing to pay overtime and fraudulently reneging on a promised promotion and raise.

Affirming a lower-court judge, the 9th Circuit said a legal doctrine barring lawsuits against religious organizations by workers with religious duties, known as the "ministerial exception," applied to Markel's claims.

"Failure to apply the ministerial exception to a mashgiach would denigrate the importance of keeping kosher to Orthodox Judaism," U.S. Circuit Judge Ryan Nelson wrote.

Lawyers for the OU and Markel did not immediately respond to requests for comment.

The court joined the Virginia-based 4th Circuit, which ruled 20 years ago that the ministerial exception applied to an overtime pay lawsuit by a mashgiach at an elder care facility in Washington, D.C.

The exception was created by courts and bolstered by a pair of U.S. Supreme Court rulings involving teachers at religious schools. Nelson on Monday wrote that those decisions, from 2012 and 2020, had made clear that the exception should be applied broadly to a wide array of workers whose duties impact their employers' religious missions.

The OU requires that a mashgiach be an observant Orthodox Jew and interpret and apply Jewish dietary law in consultation with rabbis and other religious officials, wrote Nelson, who was appointed by Republican President-elect Donald Trump during his first term.

Nelson's opinion was joined by U.S. Circuit Judge Lawrence VanDyke, fellow Trump appointee, while U.S. Circuit Judge Gabriel Sanchez, an appointee of Democratic President Joe Biden, concurred in the judgment.

Sanchez agreed that Markel's claims were foreclosed, but in a brief concurring opinion said the Supreme Court had never endorsed a categorically broad application of the exception.

Rather, the justices have outlined "a 'flexible' approach for determining when a religious organization’s employee may qualify as a minister," Sanchez wrote.

The case is Markel v. Union of Orthodox Jewish Congregations of America, 9th U.S. Circuit Court of Appeals, No. 23-55088.

For Markel: Michael Friedman of Friedman

For the OU: Leonora Schloss of Jackson Lewis

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(Reporting by Daniel Wiessner in Albany, New York; Editing by Nate Raymond in Boston)

((daniel.wiessner@thomsonreuters.com))