United States: The New Jersey Supreme Court In Crisitello v. St. Theresa School Holds The "Religious Tenets" Doctrine As An Affirmative Defense

On August 14, 2023, the New Jersey Supreme Court, in Crisitello v. St. Theresa School, held that the "religious tenets" exception to the New Jersey Law Against Discrimination (LAD) provides an affirmative defense to religious entities in claims of employment discrimination, and if successfully pled and proven, avoids the pretext analysis in the McDonnell Douglas framework.

Background

In 2011, Defendant St. Theresa School hired Plaintiff Victoria Crisitello. As part of Crisitello's employment, she signed an acknowledgment of her receipt and understanding of employment documents including the Code of Ethics. St. Theresa School is a Roman Catholic elementary school that uses the official "Archdiocese of Newark Policies on Professional and Ministerial Conduct," the first section of which contains its Code of Ethics. The Code of Ethics requires employees to conduct themselves in a manner that is consistent with the discipline, norms, and teachings of the Catholic Church.

After three years of employment, in 2014, Sister Lee, the school principal, approached Crisitello about the possibility of teaching art full time. During their meeting, Crisitello stated that she was pregnant. A few weeks later, Sister Lee told Crisitello that she had violated the Code of Ethics by engaging in premarital sex and therefore terminated Crisitello after presenting her with the option of resignation.

Later in 2014, Crisitello filed a complaint in Union County Superior Court alleging discrimination based on pregnancy and marital status pursuant to the LAD. After conducting limited discovery, in November 2016, the trial court granted summary judgment in favor of St. Theresa School, finding that the LAD protects a religious institution in requiring that an employee abide by the principles of its faith. The trial court held that Crisitello was terminated for violating the tenets of the Catholic Church, thereby violating the Code of Ethics, and not her pregnancy and marital status. It lastly held the First Amendment barred her claims.

However, on appeal in 2018, the Appellate Division reversed, holding that the First Amendment barred neither Crisitello's claims and that Crisitello had established a prima facie case discrimination under the LAD. On remand, after discovery, the trial court again in April 2019 granted summary judgment in favor of St. Theresa School. The trial court held there was no evidence Crisitello's out-of-wedlock pregnancy was not the real reason for her termination.

Now on appeal for a second time, the Appellate Division again reversed in November 2020, holding that knowledge or mere observation of an employee's pregnancy alone is not a permissible basis to detect violations of the school's policy and terminate an employee. The Appellate Division distinguished this case from Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), on the basis that Crisitello did not perform "vital religious duties."

The New Jersey Supreme Court granted St. Theresa School's petition for certification in 2021.

The Supreme Court Opinion

Justice Solomon wrote the opinion and held the "religious tenets" exception of N.J.S.A. 10:5-12(a)—"it shall not be an unlawful employment practice" for a religious entity to follow the tenets of its faith "in establishing and utilizing criteria for employment"—is an affirmative defense available to a religious entity when confronted with a claim of employment discrimination.

In its reasoning, the Court stated that the legislature prescribed an exception to liability under the LAD based on a religious institution's reliance on the tenets of its faith in setting employment criteria, the religious tenets exception. The religious tenets exception is thus an affirmative defense which must be pled and proven. The Court further stated that, if the religious tenets exception is pled and proven, an employer need not contest a plaintiff's allegations. In LAD cases where a religious employer invokes the religious tenets exception, the employer must demonstrate that the challenged employment decision relied solely on employment criteria adopted pursuant to the tenets of its religion. The Court lastly stated if a plaintiff-employee fails to raise a genuine dispute of material fact as to whether the challenged decision relied solely on the religious tenets of the employer, then the affirmative defense stands as an absolute bar to liability, and thus the employer, as a result of having a successful affirmative defense, avoids the pretext analysis in the McDonnell Douglas framework.

In applying the facts to the law, the Court stated St. Theresa School had validly asserted the religious tenets exception as an affirmative defense. The Court analyzed the record and stated the undisputed evidence of record showed that Crisitello confirmed receipt and understanding of documents including the Code of Ethics. Accordingly, the religious tenets exception allowed St. Theresa School to require its employees, as a condition of employment, to abide by Catholic law, including that they abstain from premarital sex. Lastly, the Court noted Crisitello had presented no evidence to counter St. Theresa School's asserted position surrounding the reasons for her termination.

Justice Pierre-Louis issued a concurring opinion, stating that, while she agreed that Crisitello's claims fail, Crisitello's claim failed at the third step of the McDonnell Douglas framework. Justice Pierre-Louis disagreed that the religious tenets exception is an affirmative defense such that the McDonnell Douglas framework does not apply; rather, in her view, the religious tenets exception is a legitimate non-discriminatory reason for the adverse employment action under the McDonnell Douglas pretext analysis.

Takeaways

• The affirmative defense of the "religious tenets" exception to the LAD provides religious institutions with an absolute bar to liability, and thus avoids the pretext analysis in the McDonnell Douglas framework. That is, the religious institution must demonstrate and follow the tenets of its faith when establishing and utilizing criteria for employment.
• Religious institutions, like any employer, must remain consistent for the reasons for the termination. One of the reasons for St. Therea School's victory was Crisitello's inability to counter the circumstances of her termination.
• Employers must ensure employees know the standards of employment, and have those employees read, and acknowledge in writing, the standards of employment. The Court noted in its opinion Crisitello's acknowledgement of the Code of Ethics, her violation of which was the reason for her termination.

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