Kosher wine and antidiscrimination law

[Paul Finkelman]

i did some research on this once, from the Jewish law perspective, and
indeed the wine must be made by a Jew; however, it maybe that the
winemakers simply hire a Rabbi or Jewish winemaker to "oversee" the
project; I assume, by the way, the same rule would apply to Kosher meat,
for folks like Hebrew National.  You can't sell Kosher meat if the
animal is not killed by a shochet (I think that is how it would come out
in our alphabet) and a schochet must be Jewish and properly trained; It
seems to me it is clearly a BFOQ; similalry, you cannot sell other
Kosher food without a rabbi supervising the porcess.  Again, you would
have to hire a Rabbi trained in Kosher supervision; I do not believe
anyone else would do  Similarly, you cannot sell Kosher wine unless it
is Kosher.  Everyone else at the winery, just like in the meat
processing plant, or the food processing plant except the shochet,
wine-maker, and kosher supervisor can, I am pretty certain, be
non-Jewish.


--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu


"Volokh, Eugene" wrote:

>
>
>         As I understand it, to be kosher, wine and other grape
> products must be made by Jews.  See http://www.jewfaq.org/kashrut.htm
> .  Unless I'm mistaken, non-Jews may not at all participate in some
> aspects of the production process.
>
>         Does anyone know how producers of these products can avoid
> Title VII and state antidiscrimination law liability?  I assume the
> ministerial exception doesn't apply to these jobs.  Likewise, the
> exception for religious institutions that was upheld in Corporation of
> Presiding Bishop v. Amos wouldn't apply, because to my knowledge
> kosher wineries are for-profit and not run by religious
> organizations.  Title VII does contain a religion BFOQ, but how
> exactly could a court decide that religion is a BFOQ there and not in
> other situations where employers claim a religious obligation to
> discriminate based on religion?  (Also, it's not at all clear to me
> that the hiring criterion here would really be religion as such, or
> just ethnicity; if kosher law operates here the way that to my
> knowledge Jewish law generally operates, even a nonreligious person
> would be employable, so long as he is a Jew by matrilineal descent.)
> Could the employers be so small that they fall outside Title VII, and
> outside state law, which often applies to much smaller employers?
> (Note, though, that if the discrimination is seen as ethnic
> discrimination and not just religious discrimination, it might fall
> within the remarkable breadth of 42 USC 1981, regardless of the size
> of the business.)  Or is it just that people find this so reasonable
> or unobjectionable that no-one has bothered to sue?
>
>         Incidentally, note that strict application of Title VII to
> for-profit winemakers would not be a tremendous burden on observant
> Jews; they could still drink imported wine, and if somehow that became
> unavailable, non-profit religious organizations would presumably be
> able to produce such wine (at least for sacramental purposes) and take
> advantage of the Amos exemption,.  I'm certainly not wild about such a
> result, but I wonder whether it can in fact be avoided (assuming
> people decide they want to sue).
>
>         Eugene



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