PUBLISHEDUNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUITFERMAN SHALIEHSABOU,
Plaintiff-Appellant,v.
HEBREW HOME OF GREATERWASHINGTON, INCORPORATED,Defendant-Appellee.



No. 03-1314



Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-02-284-AW)
Argued: January 21, 2004
Decided: April 2, 2004
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Widener concurred. Judge Luttig wrote a dissenting
opinion.

COUNSEL
ARGUED: Paul Frederick Newhouse, Towson, Maryland, for Appellant. Jeffrey Jules Pargament, PILIERO, MAZZA & PARGAMENT,
Washington, D.C., for Appellee.

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SHALIEHSABOU v. HEBREW HOME

OPINIONWILLIAMS, Circuit Judge:
Ferman Shaliehsabou, a kosher supervisor, appeals the grant ofsummary judgment in favor of his former employer, the Hebrew
Home of Greater Washington, in this action brought under the overtime provisions of the Fair Labor Standards Act. Because Shaliehsabou is employed in a ministerial role by a religiously affiliatedemployer and thus not entitled to overtime under the Act, we affirm
the district court’s grant of summary judgment.
I.
From 1992 until August 2000, Ferman Shaliehsabou, an Orthodox
Jewish man, worked at the Hebrew Home of Greater Washington (theHebrew Home) as a mashgiach.1 The term mashgiach is defined as"an inspector appointed by a board of Orthodox rabbis to guard
against any violation of the Jewish dietary laws." Random House
Webster’s Unabridged Dictionary 1181 (2d ed. 1998). Shaliehsabou
served as a part-time mashgiach from 1992 until 1994, when he waselevated to a full-time position. He continued in his position as a fulltime mashgiach at the Hebrew Home until resigning from work in
August 2000.
The Hebrew Home is a non-profit religious and charitable corporation whose mission, according to its By-Laws, is to serve "aged of theJewish faith in accordance with the precepts of Jewish law and customs, including the observance of dietary laws." (J.A. at 101.) The
Hebrew Home accepts persons of all faiths, but approximately 95%
of its residents are Jewish. All members of its board of directors are
Jewish. The Hebrew Home maintains a synagogue on its premises
and holds twice-daily religious services conducted by an ordained
rabbi, who serves as a full-time employee. Each resident’s room contains a "mezuzah," defined as "a parchment scroll inscribed on one
side with the Biblical passages Deut. 6:4-9 and 11:13-21 and on the1

Although the term appears to have multiple spellings, to be consistent
with the opinion of the district court, we use the spelling "mashgiach" inthe singular and "mashgichim" in the plural.

SHALIEHSABOU v. HEBREW HOME

3other side with the word Shaddai (a name applied to God), inserted
in a small case or tube . . . and attached by some Jews to the doorpostof the home." Random House Webster’s Unabridged Dictionary 1212
(2d ed. 1998).
Consistent with its mission to serve the spiritual needs of its residents, the Hebrew Home abides by the "halakha." Halakha "is theoverall term for Jewish law" and literally means "the way on which
one goes." Rabbi Hayim Halevy Donin, To Be a Jew: A Guide to Jewish Observance in Contemporary Life 29 (1972). It is "the Jewish way
for securing and perpetuating the Jewish way of life." Id. at 32. In
accordance with this guiding precept, the Hebrew Home provides its
residents kosher meals prepared in accordance with the Jewish dietarylaws, which are collectively known as the "kashruth." Id. at 97. As
part of the halakha, "[t]he Jewish dietary laws prescribe not merelya diet for the body but a diet for the soul as well, not so much a dietto maintain one’s physical well being as a diet to maintain one’s spiritual well-being." Id. at 98. In other words,
The faithful Jew observes the laws of kashrut[h] notbecause he has become endeared of its specific details nor
because it provides him with pleasure nor because he considers them good for his health nor because the Bible offers
him clear-cut reasons, but because he regards them as
Divine commandments and yields his will before the will of
the Divine and to the disciplines imposed by his faith.
Id. at 98.
To ensure that the food services department, operated by Sodexho
Services (Sodexho), would prepare kosher meals, the Hebrew Home
entered into an agreement with the Rabbinical Council of Greater
Washington (the Vaad)2 whereby the Vaad would recommend mashgichim to serve in the Hebrew Home. Pursuant to the agreement, theVaad was the "sole authority" for determining compliance with the
2

The Vaad is "a non-profit organization of Orthodox Jewish congregational rabbis in the Metropolitan Washington area." (J.A. at 108.) The
Vaad is also "the primary agency of kashruth supervision" in that area.
(J.A. at 109.)

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SHALIEHSABOU v. HEBREW HOME

kashruth, and any mashgiach "must be approved by the [Vaad] andchosen after [the Vaad’s] consultation with the . . . Hebrew Home."(J.A. at 51.) All "kitchen operations including food preparation andfood service," had to be taken "under the supervision of the mashgiach." (J.A. at 51.) The agreement between the Hebrew Home andthe Vaad did not reference any qualifications required of mashgichim.
There was, however, "no secular health or safety rationale for thework performed by the [m]ashgichim." (J.A. at 122.)
Rabbi Kalman Winter, Director of the Vaad, explained the role ofthe mashgiach in a declaration made in connection with this case.
According to Rabbi Winter, mashgichim are "supervisors" who "arequalified under Judaic law to supervise the preparation of food toensure that it is kosher." (J.A. at 109.) Mashgichim, according to
Rabbi Winter, "must have a knowledge of the basic laws of kashruth"and "must also be a Sabbath observer and be a fully observant Jew."(J.A. at 110.) Such persons "generally have obtained their knowledgeof the laws of kashruth through experience and study at a ‘yeshiva.’"3(J.A. at 111.) Moreover, according to Rabbi Winter, mashgichim"possess the authority to enforce the laws of kashruth and make onthe-spot decisions based on their knowledge and understanding of thesituation at hand." (J.A. at 111.) Rabbi Winter stated that complying
with kosher dietary laws "is an integral and essential part of Jewish
identity." (J.A. at 109.)
Although the Vaad periodically recommended an appropriate wage
for the mashgichim, the Hebrew Home retained responsibility forpaying them. The Vaad did retain the ability to remove mashgichim
from service at the Hebrew Home and also possessed the ability totake disciplinary action against an individual mashgiach. The Hebrew
Home had concurrent power to discipline and fire mashgichim, but
the Hebrew Home would only take such a disciplinary measure after
consultation with the Vaad.
Shaliehsabou, as mentioned, has been a devout Orthodox Jew hisentire life and began working at the Hebrew Home as a part-time3

A yeshiva is "an Orthodox Jewish school of higher instruction in Jewish learning, chiefly for students preparing to enter the rabbinate." Random House Webster’s Unabridged Dictionary 2202 (2d ed. 1998).

SHALIEHSABOU v. HEBREW HOME

5

mashgiach in 1992. Shaliehsabou attended yeshiva in Colorado andreceived a Bachelor of Talmudic Law from Ner Israel Rabbinical College in Baltimore. Shaliehsabou occasionally purchased and readbooks to further his understanding of Jewish dietary laws and testified
that he is engaged in a lifelong learning of Jewish law and custom.
He also recognized that failure to stop a violation of the kashruth bya kitchen worker was "a sin like any other sin." (S.A. at 21.) Shaliehsabou declared himself as "clergy" on his federal tax returns, and healso took a parsonage exemption from his salary. (J.A. at 129.)
Shaliehsabou’s "basic responsibility [at the Hebrew Home] was toguard against any violations of Jewish dietary law." (J.A. at 115.) Pursuant to that end, Shaliehsabou’s "primary duties" included "inspecting deliveries," "opening and closing the refrigerators to insure theintegrity of the kosher status of the kitchen," "insuring that all meatand dairy products were stored and kept separate during food preparation," and "lighting all ovens and heating equipment in accordancewith the requirements of Jewish law." (J.A. at 17.) Shaliehsabou
would also cleanse kitchen utensils and other items if they became
non-kosher. Shaliehsabou had the ability and the duty to instruct the
kitchen staff on complying with the kashruth and to report any violations. He was "the liaison between the Home and the Vaad on mattersof Jewish dietary law." (J.A. at 115.) Shaliehsabou was unsure who
was his direct employer and was told by the general manager ofSodexho, "[w]ith a rabbi’s questions, go to rabbinical, and for any
other issues you have, just come to [food services]." (S.A. at 36.)
Shaliehsabou made decisions regarding the kitchen’s compliancewith the kashruth, but occasionally he would refer "difficult questionsof Jewish law"4 to the Vaad. (J.A. at 115-116, 111.) The mashgichim,
not the food services department, had "final say" over matters relating
to the kosher preparation of food. (J.A. at 113.) When a mashgiach
decided, for example, that unclean food needed to be discarded, it
could not be provided to residents under any circumstances.
4

For example, on one occasion a new employee put milk into a mixer
used for beef products, and Shaliehsabou contacted the Vaad to determine if he had to dispose of all of the products involved or instead could
ritually cleanse the mixer and utensils involved.

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SHALIEHSABOU v. HEBREW HOME

During Shaliehsabou’s employment as a full-time mashgiach, he
was paid for at least eighty hours of work each bi-weekly period. Shaliehsabou, like all employees, including salaried employees, wasassigned an hourly rate of pay for the purpose of determining benefits.
Although Shaliehsabou occasionally received additional hourly compensation for hours worked over eighty per bi-weekly period, heclaims that he was not compensated for all of the overtime hours heworked. When Shaliehsabou worked less than eighty hours during abi-weekly period, hours were deducted from his accrued leave time
to make sure that his total hours for the bi-weekly period equaled
eighty. If Shaliehsabou exceeded his leave time, he would be docked
pay for absences, including absences of less than one day. Shaliehsabou was paid for less than eighty hours of work on a total of fiveoccasions, all in the year 2000. Those shortfalls were due, according
to the Hebrew Home, to administrative errors, and the Hebrew Home
compensated him for the shortfalls prior to the institution of this lawsuit.
Shaliehsabou ceased work at the Hebrew Home in August 2000
and, in November 2001, commenced an action in Maryland state
court, alleging that the Hebrew Home violated the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219 (West 1998 & Supp.
2003) (FLSA), and the Maryland Wage and Hour Law, Md. CodeAnn., Labor and Employment § 3-415 (1999). Specifically, Shaliehsabou alleged that the Hebrew Home failed to pay him overtime wages
as required by federal and state laws. The Hebrew Home filed anotice of removal in January 2002, pursuant to 28 U.S.C.A. § 1441(a)(West 1994), and the case was removed to the United States District
Court for the District of Maryland. Following discovery, the parties
filed cross-motions for summary judgment. The district court foundthat Shaliehsabou fell within the "ministerial exception" to the FLSA
and granted the Hebrew Home’s motion for summary judgment on
February 12, 2003. The district court also found that, assuming Shaliehsabou did not fall within the ministerial exception, Shaliehsabou
was an exempt executive, administrative or professional employee, as
defined by 29 C.F.R. §§ 541.1-541.3 (2003).5 Shaliehsabou timely
5

All of these exceptions are limited to salaried employees, see 29
C.F.R. § 541.118(a) (2003), and must be proven by the employer by

SHALIEHSABOU v. HEBREW HOME

7

6

appeals the district court’s decision.
II.

We review the district court’s grant of summary judgment de novo.
See Hill v. Lockheed Martin Logistics Mgmt. Inc., 354 F.3d 277, 283(4th Cir. 2004) (en banc). Summary judgment is appropriate "if thepleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled toa judgment as a matter of law." Fed. R. Civ. P. 56(c) (West 1994);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We construe
the evidence in the light most favorable to Shaliehsabou and draw all
reasonable inferences in his favor. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
A.
The FLSA is commonly referred to as "the minimum
wage/maximum hour law." Monahan v. County of Chesterfield, 95
F.3d 1263, 1266 (4th Cir. 1996) (internal quotation marks omitted).
The purpose of the FLSA is "to protect all covered workers from substandard wages and oppressive working hours." Barrentine v.
Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981). As an
early Supreme Court case examining the FLSA explained:
clear and convincing evidence. Shockley v. City of Newport News, 997
F.2d 18, 21 (4th Cir. 1993). The district court did not make a specificfinding that Shaliehsabou was a salaried employee and, on appeal, Shaliehsabou argues that he was not salaried because he was assigned anhourly wage and his pay was docked for absences of less than one day.
Because we decide the case on the application of the ministerial exception, we do not consider the district court’s other grounds for granting
summary judgment, namely, whether Shaliehsabou is exempt from the
FLSA as an executive, administrator or professional.
6
The district court did not specifically address Shaliehsabou’s claim
under Maryland’s Wage and Hour law, and, on appeal, Shaliehsabou
does not pursue the state law claim.

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SHALIEHSABOU v. HEBREW HOME

‘A fair day’s pay for a fair day’s work’ was the objective
stated in the Presidential message which initiated the legislation. That message referred to a ‘general maximum working
week,’ ‘longer hours on the payment of time and a half forovertime’ and the evil of ‘overwork’ as well as ‘underpay.’
Overnight Motor Transp. Co., Inc. v. Missel, 316 U.S. 572, 578(1941) (footnote omitted).
Specifically, Congress found that "the existence, in industries
engaged in commerce or in the production of goods for commerce, oflabor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-beingof workers" burdened interstate commerce and constituted an unfair
method of competition. 29 U.S.C.A. § 202(a). Congress, in addition
to restricting the use of child labor by employers, mandated paymentof a minimum wage for employees and, relevant here, required that
employees be paid at least time and a half for time worked beyond
forty hours in a week. 29 U.S.C.A. §§ 206-207(a). To effectuate thegoals of the FLSA, courts construe coverage under the FLSA "liberally to apply to the furthest reaches consistent with congressional
direction." Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 207,
211 (1959). "[B]road coverage is essential to accomplish the goal ofoutlawing from interstate commerce goods produced under conditions
that fall below minimum standards of decency." Tony & Susan Alamo
Found. v. Secretary of Labor, 471 U.S. 290, 296 (1985). In accordance with that goal, "‘[e]xemptions from or exceptions to the Act’s
requirements are to be narrowly construed.’" Monahan, 95 F.3d at
1268 (quoting Johnson v. City of Columbia, 949 F.2d 127, 129-30(4th Cir. 1991)) (alteration in original).
Although the coverage of the FLSA is broad, two conditions must
be met for the minimum wage and overtime provisions of the FLSA
to apply to the Hebrew Home. First, the Hebrew Home must be an"[e]nterprise engaged in commerce or in the production of goods forcommerce," 29 U.S.C.A. § 203(r), and second, Shaliehsabou must be
an "employee," which is defined under the FLSA to "mean[ ] any
individual employed by an employer," 29 U.S.C.A. § 203(e). TheFLSA was amended in 1961 to include coverage over enterprises,
and, at that time, "[t]here was broad congressional consensus that

SHALIEHSABOU v. HEBREW HOME

9

ordinary commercial businesses should not be exempted from the Act
simply because they happened to be owned by religious or other nonprofit organizations." Alamo, 471 U.S. at 298. The Hebrew Home
does not disagree and concedes that it is an "enterprise" for purposesof the Act. Instead, the Hebrew Home argues that because the position of mashgiach falls within the ministerial exception to the FLSA,
Shaliehsabou is not an "employee" under the FLSA.
B.
We have recognized that there is a ministerial exception to the
FLSA. Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1396 (4thCir. 1990). As we noted in Dole, "[t]his exemption is derived fromthe congressional debate [about the FLSA] and delineated in guidelines issued by the Labor Department’s Wage and House Administrator." Id. The relevant portion of those guidelines provides:
Persons such as nuns, monks, priests, lay brothers, ministers, deacons, and other members of religious orders who
serve pursuant to their religious obligations in schools, hospitals, and other institutions operated by their church or religious order shall not be considered to be "employees."
Field Operations Handbook, Wage and Hour Division, U.S. Dep’t ofLabor, § 10b03 (1967).
Considering the FLSA ministerial exception in Dole, we held thatthe lay teachers at a religious school did not fall within the ministerial
exception because the "teachers in the present case perform no sacerdotal functions; neither do they serve as church governors. They
belong to no clearly delineated religious order." Dole, 899 F.2d at
1396. Importantly, in holding that the ministerial exception did not
apply, we looked to decisions dealing with the ministerial exception
under Title VII, such as Rayburn v. Gen. Conference of Seventh-Day
Adventists, 772 F.2d 1164 (4th Cir. 1985) and EEOC v. Southwestern
Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 1981). Dole,
899 F.2d at 1396.
In the Title VII context, we have applied a "primary duties" test to
determine whether an individual falls within the ministerial exception.

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SHALIEHSABOU v. HEBREW HOME

In applying the primary duties test, we focus on "the function of theposition," and not whether the individual holding that position is formally ordained — i.e., we ask "whether a position is important to thespiritual and pastoral mission of the church." Rayburn, 772 F.2d at
1168-69 (4th Cir. 1985). Thus, "[a]s a general rule, if the employee’s
primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participationin religious ritual and worship, he or she should be considered‘clergy’." Id. at 1169 (quoting Bruce N. Bagni, Discrimination in theName of the Lord: A Critical Evaluation of Discrimination by Religious Organizations, 79 Colum. L. Rev. 1514, 1545 (1979)).
Although the Title VII ministerial exception is based on constitutional principles7 and not on "congressional debate" and Labor
Department guidelines as is the FLSA exception, we implicitly haveheld that the ministerial exceptions under the two Acts are coextensive in scope. For example, we have relied on Title VII ministerial
exception cases in Dole, and we have cited both Dole and Title VIIcases together in support of the proposition that "[t]he ministerial
exception operates to exempt from the coverage of various employment laws the employment relationships between religious institutions and their ‘ministers.’" EEOC v. Roman Catholic Diocese of
Raleigh, N.C., 213 F.3d 795, 800 (4th Cir. 2000) (citing both Doleand Rayburn). Accordingly, our precedent in Dole and Diocese of
Raleigh suggests that when determining who is a member of a religious order serving pursuant to his religious obligations, for purposesof the ministerial exception to the FLSA, we apply the same primary
duties test that we apply for purposes of the Title VII ministerial
exception. This common sense approach creates continuity between
the FLSA and Title VII, two employment laws of general applicabil7

In Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d
1164 (4th Cir. 1985), we held that applying Title VII to the employment
relationship between religious institutions and their ministerial employees would violate the Free Exercise and Establishment Clauses of theFirst Amendment. We since have held that the Supreme Court’s intervening decision in Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), has not abrogated the ministerial
exception. EEOC v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d
795, 800 n* (4th Cir. 2000).

SHALIEHSABOU v. HEBREW HOME

11

ity, and it allows us to avoid answering a difficult constitutional question — i.e., whether the First Amendment would otherwise compel an
exception to the FLSA coextensive with that recognized as constitutionally mandated in the Title VII context.8
Furthermore, using the primary duties test to determine the scopeof the FLSA’s ministerial exception is in accord with other statutory
exceptions to the FLSA. The minimum wage and overtime requirements, codified in §§ 206-207, do not apply to "any employee
employed in a bona fide executive, administrative, or professional
capacity." 29 U.S.C.A. § 213(a)(1). The implementing regulations
look to the "primary duties" of a salaried position to determine
whether an employee is a bona fide executive, administrator or professional. See 29 C.F.R. §§ 541.1-541.3.9 Courts are thus familiar andcomfortable with examining the primary duties of an employee when
determining the scope of exceptions under the FLSA. In sum, bydetermining whether a position is ministerial by referencing the primary duties of the position, the FLSA’s ministerial exception is coextensive with that recognized under Title VII and parallels the inquiry
made for other exceptions to the FLSA.
It is further important to note that the primary duties test in thiscontext does not permit employers to avoid the broad coverage of the
FLSA. First, the ministerial exception to the FLSA applies only to"employment relationships between religious institutions and their‘ministers.’" Diocese of Raleigh, 213 F.3d at 800 (emphases added);see also EEOC v. Catholic Univ. of Am., 83 F.3d 455, 474 (D.C. Cir.
8

See Harris v. United States, 536 U.S. 545, 555 (2002) (explaining
canon of construction that if a statute raises constitutional concerns the
Court will first look to see if the statute can be construed in a manner toavoid difficult constitutional questions).
9
In fact, the primary duties test for the ministerial exception is quite
similar to the primary duties test applied to school employees under the
professional exception. That test exempts school employees whose primary duties include "[t]eaching, tutoring, instructing, or lecturing in theactivity of imparting knowledge." 29 C.F.R. § 541.3(a)(3). As discussed
above, supra note 5, the district court applied the primary duties tests forthe executive, administrative and professional exemptions and found that
Shaliehsabou qualified for each exemption.

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SHALIEHSABOU v. HEBREW HOME

1996) (Henderson, J., concurring) (concluding that ministerial exception did not apply to secular decision taken by secular institution, but
concurring in judgment because the final employment decision rested
with the Catholic church). Also, as discussed above, the commercial
activities of religious institutions are covered by the FLSA. See
Alamo, 471 U.S. at 296 ("The statute contains no express or implied
exception for commercial activities conducted by religious or othernonprofit organizations."); Brock v. Wendell’s Woodwork, Inc., 867
F.2d 196, 198-99 (4th Cir. 1989) (holding that child labor restrictions
under the FLSA applied to work performed in connection with commercial activities of a religious organization). In addition, we haveheld that "the exception would not apply to employment decisions
concerning purely custodial or administrative personnel." Diocese of
Raleigh, 213 F.3d at 801; see also Weissman v. Congregation Shaare
Emeth, 38 F.3d 1038 (8th Cir. 1994) (applying ADEA to secularadministrator of Jewish temple). Moreover, "[w]hile religious organizations may designate persons as ministers for their religious purposes free from any governmental interference, bestowal of such adesignation does not control their extra-religious status." Southwestern Baptist, 651 F.2d at 283. In summary, the ministerial exception
to the FLSA applies only where the employer is a religious institution
and the employee’s primary duties are ministerial in nature. The
exception does not apply to the religious employees of secular
employers or to the secular employees of religious employers.
C.
1.
Turning to the instant case, Shaliehsabou argues both that his primary duties are not ministerial and that the Hebrew Home is not areligious institution. We address each contention in turn.
First, Shaliehsabou argues that his position is not covered by theministerial exception because his primary duties involved nothing
more than inspecting incoming food deliveries and ensuring the
kosher preparation of food. Shaliehsabou avers that, apart from being
an Orthodox Jew, no special training is required to serve as a mashgiach. He likens his case to Dole, wherein we held that to apply theministerial exception to all persons simply based on their sincere reli-

SHALIEHSABOU v. HEBREW HOME

13

gious beliefs or their membership in a religious group would "create
an exception capable of swallowing up the rule." Dole, 899 F.2d at
1397 (quotation marks omitted).
The Hebrew Home, in contrast, argues that the position of mashgiach is intrinsically religious, because maintaining a kosher diet is an
integral part of Judaism and reflects a divine commandment from
God. Involvement in the kosher preparation of food, the Hebrew
Home asserts, amounts to the supervision of religious ritual and worship. Indeed, according to the Hebrew Home, there is no secular purpose for employing mashgichim. Although the Hebrew Home
concedes that Shaliehsabou was not formally ordained, it points to his
own representations, as seen on his federal tax returns, that he considered himself to be clergy.
Although no court has considered whether a mashgiach is
exempted from the FLSA because he performs primarily ministerial
duties: three recent cases strongly suggest that exemption is appropriate here. In Diocese of Raleigh, we held that a female who served asa part-time music teacher and Director of Music Ministry at a Catholic cathedral was a "minister." 213 F.3d at 802. We found first thatthe position was "‘important to the spiritual and pastoral mission of
the church.’" Diocese of Raleigh, 213 F.3d at 802 (quoting Rayburn,
772 F.2d at 1169). "Music," we explained, "is an integral part of manydifferent religious traditions," and also "a vital means of expressing
and celebrating those beliefs which a religious community holds mostsacred." Id. We declined to apply the ministerial exception in a manner that would "demote music below other liturgical forms." Id. We
concluded that, because the music teacher in question was "the primary human vessel through whom the church chose to spread its message in song," she met the ministerial exception. Id. at 804.
Shaliehsabou, much like the Director of Music Ministry in Dioceseof Raleigh, is the primary human vessel through whom the Hebrew
Home chose to assure that the Jewish dietary laws were followed. In
addition, just as sacred music is integral to Catholicism, kosher foodis an integral part of Judaism.
Similarly, the Fifth Circuit has held that a choir director falls within
the ministerial exception to the Americans with Disabilities Act.
Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999). The court noted that

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SHALIEHSABOU v. HEBREW HOME

"religious music plays a highly important role in the spiritual missionof the church" and that the choir director "did serve as a spiritualleader." Id. at 176. The court conceded that "the facts . . . are not asstrong" as other cases invoking the ministerial exception but nonetheless concluded that, because the choir director "participated in religious rituals and had numerous religious duties, [the position]
qualifies as a ‘minister.’" Id.
Finally, the Seventh Circuit, in Alicea-Hernandez v. Catholic
Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003), applied Rayburnand Diocese of Raleigh in holding that the Hispanic Communications
Manager of a Catholic church was a minister for purposes of the
exception. The court explained that a "press secretary is responsible
for conveying the message of an organization to the public as awhole." Alicea-Hernandez, 320 F.3d at 704. The communications
manager was "a liaison between the Church and the community" andwas "integral in shaping the message that the Church presented." Id.
The court contrasted the position of communications manager withthat of a translator, and noted that "if she had simply served in thecapacity of translating the message from English to Spanish, thiswould be a different case." Id. at 704 n.4. Because, however, the position served to shape and convey the message of the church to the public, the court found that the communications manager was a"minister."
We cannot see any meaningful distinction between Shaliehsabou
and the music ministers at issue in Diocese of Raleigh and Starkman
or the communications manager in Alicea-Hernandez. First, Shaliehsabou’s duties required him to perform religious ritual. He supervised
and participated in religious ritual and worship. Shaliehsabou was
responsible for starting and kosherizing the ovens and cleansing
kitchen utensils in accordance with the rules of kashruth. He also
oversaw the preparation of kosher food, a key aspect of the Jewish
halakha. Shaliehsabou arguably lacked independent authority to makesome decisions regarding food preparation, but "there is no requirement that an individual have the ‘final say’ on spiritual matters." Diocese of Raleigh, 213 F.3d at 803. Importantly, it was his responsibility
to consult with the Vaad for proper resolution of any concerns. In
sum, we cannot say, given the importance of dietary laws to the Jew-

SHALIEHSABOU v. HEBREW HOME

15

ish religion, that the duties of mashgichim do not involve religious
worship and ritual.
In addition to performing religious ritual, Shaliehsabou occupied aposition that is central to the spiritual and pastoral mission of Judaism. As a juridical religion, Judaism is dependent upon compliancewith its laws, including the kashruth, and Shaliehsabou was the vessel
through whom compliance with the kashruth was ensured for residents at the Hebrew Home. Unlike the teachers in Dole, Shaliehsabou, through his mashgiach tasks, performed sacerdotal duties. As
Shaliehsabou has admitted, in the Jewish faith, non-compliance withdietary laws is a sin. As explained above, Jews view their dietary laws
as divine commandments, and compliance therewith is as importantto the spiritual well-being of its adherents as music and song are to
the mission of the Catholic church. In short, failure to apply the ministerial exception in this case would denigrate the importance of keeping kosher to Orthodox Judaism.
Accordingly, we hold that Shaliehsabou is a "minister" for purposes of the ministerial exception to the FLSA because his primary
duties included supervision and participation in religious ritual andworship, and his position is important to the spiritual mission of Judaism. Because we find that Shaliehsabou is a "minister," we next consider whether the Hebrew Home, in its employment of Shaliehsabou,
acted as a religious institution.
2.
We have never addressed whether the phrase "religious institution,"in the context of the ministerial exception, applies only to churches
or church-operated entities, or whether it has broader meaning. Our
cases applying the ministerial exception, Rayburn, Diocese of
Raleigh, Dole, and Bell v. Presbyterian Church, U.S.A., 126 F.3d 328(4th Cir. 1997), all involved Christian churches or church-operated
entities. Each of these cases turned upon the duties of the individual,
not the religious status of the employing entity. Given the lack ofauthority in our cases, we look to the decisions of our sister circuits
for instruction. Numerous courts have held that the term "religious
institution," in this context, can include religiously affiliated schools,
hospitals, and corporations. See EEOC v. Catholic Univ., 83 F.3d 461

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SHALIEHSABOU v. HEBREW HOME

(church-affiliated university); Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324 (3d Cir. 1993) (church-operated
school); DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993)(church-operated school); Scharon v. St. Luke’s Episcopal Presbyterian Hosp., 929 F.3d 360 (8th Cir. 1991) (church-affiliated hospital);
Natal v. Christian & Missionary Alliance, 878 F.2d 1575 (1st Cir.
1989) (non-profit religious corporation). Particularly instructive are
the analyses provided in Scharon and EEOC v. Catholic University.
In Scharon, the Eighth Circuit addressed the application of the ministerial exception to a hospital chaplain. The court did not address
whether the hospital was private or charitable, but it did note that thehospital "provides many secular services," but nonetheless explainedthat "in its role as [the chaplain’s] employer, it is without question areligious organization." Scharon, 929 F.2d at 362. The court based its
finding on the fact that the hospital was church-affiliated and that thejob description for the position of chaplain made clear that it was aministerial position. The court’s holding was a narrow one; the hospital was a religious institution, because, in acting as the employer ofa minister, the hospital was acting as an institution with "substantial
religious character." Scharon, 929 F.2d at 362.
In EEOC v. Catholic University, the D.C. Circuit applied the ministerial exception to a professor seeking a tenured position in the
Department of Canon Law at Catholic University. The D.C. Circuit
chose to apply the ministerial exception to Catholic University
because "the University’s ecclesiastical faculties serve as the instruments established by the Catholic Church in the United States forteaching its doctrines and disciplines." EEOC v. Catholic Univ., 83
F.3d at 464. Later, the court noted that although the Academic Senatethat made the tenure decision was secular, "it is by no means clearthat its decision was unaffected by religious considerations." Id. at466. Thus, the ministerial exception applied because the University,
as a religiously affiliated entity with substantial religious character,assumed the role of a religious institution in deciding to deny tenure.
We find the logic of Scharon and EEOC v. Catholic University persuasive, and we conclude that a religiously affiliated entity is a "religious institution" for purposes of the ministerial exception wheneverthat entity’s mission is marked by clear or obvious religious characteristics. Applying that standard here, we find that the Hebrew HomeSHALIEHSABOU v. HEBREW HOME

17

is a religious institution for purposes of applying the ministerial
exception.
Shaliehsabou’s chief argument is that the Hebrew Home is not areligious institution because its mission is providing elder care, notproviding religious services. We disagree. As Scharon and EEOC v.
Catholic University make clear, an entity can provide secular services
and still have substantial religious character. The Hebrew Home isreligiously affiliated: its By-Laws define it as a religious and charitable non-profit corporation and declare that its mission is to provide
elder care to "aged of the Jewish faith in accordance with the preceptsof Jewish law and customs." (J.A. at 101.) Pursuant to that mission,
the Hebrew Home maintained a rabbi on its staff, employed mashgichim to ensure compliance with the Jewish dietary laws, and placeda mezuzah on every resident’s doorpost. Although we do not have todecide the full reach of the phrase "religious institution," we hold thatthe phrase includes an entity such as the Hebrew Home. Accordingly,
we conclude that the Hebrew Home is a religious institution for purposes of applying the ministerial exception to the FLSA.
III.
Because we find both that the Hebrew Home was acting as a religious institution in employing Shaliehsabou and that Shaliehsabou’s
primary duties were ministerial, we hold that Shaliehsabou falls
within the ministerial exception to the FLSA. Accordingly, Shaliehsabou is not an "employee" under the FLSA, and we affirm the district
court’s grant of summary judgment in favor of Hebrew Home.
AFFIRMED
LUTTIG, Circuit Judge, dissenting:
I do not believe that there is a "ministerial exemption" to the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq., and if there were, I do
not believe that it would be as far-reaching as the court holds today.
Because of the obvious importance of the issue decided, and theevident incorrectness of the court’s holding, I urge the appellant to18

SHALIEHSABOU v. HEBREW HOME

seek rehearing en banc from this court, and failing rehearing en bancby this court, to seek review in the Supreme Court of the UnitedStates.