In Crisitello v. St. Theresa School (A-63-20) (085213) (Decided August 14, 2023), the Supreme Court of New Jersey held that a Catholic school could terminate a teacher for having premarital sex. According to the state’s highest court, the termination was legal under the New Jersey Law Against Discrimination’s (LAD) “religious tenets” exception, which states “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.”
Facts of Crisitello v. St. Theresa School
The 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. In part, 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.”
In 2011, St. Theresa’s hired Victoria Crisitello, a former student, who signed an acknowledgment of her receipt and understanding of employment documents, including the Code of Ethics. 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 thus could not remain on St. Theresa’s staff.
Crisitello filed a complaint alleging discrimination based on pregnancy and marital status. The trial court granted summary judgment in favor of St. Theresa’s. According to the court, “the record is bare of any evidence that even remotely suggests that [Crisitello’s pregnancy out of wedlock] is not the real reason for her termination.” The trial court also found significant evidence in the record that St. Theresa’s supports its married teachers who become pregnant and that another Catholic school, also within the Archdiocese of Newark, fired an unmarried male teacher after he revealed that his girlfriend was pregnant with their child.
The Appellate Division reversed, 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 court 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 appellate court ruled that despite Crisitello’s concession — that she knew premarital sex violated the tenets of the Catholic Church — neither the Code of Ethics nor the employee handbook expressly mentioned premarital sex or that it would result in termination.
NJ Supreme Court’s Decision in Crisitello v. St. Theresa School
The New Jersey Supreme Court reversed. The court first held that the “religious tenets” exception of N.J.S.A. 10:5-12(a) is an affirmative defense available to a religious entity when confronted with a claim of employment discrimination. The court further found that the uncontroverted fact is that St. Theresa’s followed the religious tenets of the Catholic Church in terminating Crisitello. “The religious tenets exception allowed St. Theresa’s to require its employees, as a condition of employment, to abide by Catholic law, including that they abstain from premarital sex,” the court wrote.
The New Jersey Supreme Court first addressed the LAD’s religious tenet’s exception. It instructed that because the Legislature expressly 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 is an affirmative defense which must be pled and proven. If it is pled and proven, the employer need not contest the plaintiff’s allegations. As the court explained:
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. If the plaintiff employee fails to raise a genuine dispute of material fact as to whether the challenged employment decision relied solely on the religious tenets of the employer, then the affirmative defense stands as an absolute bar to liability. Of course, when the record reveals questions of material fact regarding whether a religious employer relied exclusively on a plaintiff’s violation of a religious tenet in taking adverse employment action against the plaintiff, the matter before the court is not ripe for summary judgment.
The New Jersey Supreme Court went on to conclude that St. Theresa’s had validly asserted the religious tenets exception as an affirmative defense and that Crisitello has not raised any genuine dispute of material fact regarding the applicability of that defense. To support its conclusion, the court cited that Crisitello acknowledged that St. Theresa’s required her to abide by the tenets of the Catholic faith, including that she abstain from premarital sex, as a condition of her employment. Additionally, the record evidence demonstrates that St. Theresa’s consistently maintained its position that Crisitello was terminated for violating Catholic law by engaging in premarital sex. And Crisitello has presented no evidence to counter St. Theresa’s asserted position. In reaching its decision, the New Jersey Supreme Court also rejected the Appellate Division’s reasoning that the lack of evidence regarding “how male or non-pregnant female teachers who engaged in premarital sex were detected or treated” precluded summary judgment. “We reject the Appellate Division’s novel suggestion that Crisitello’s firing was evidence of pretext simply because St. Theresa’s did not ‘survey’ its employees to discover other transgressions of the faith,” the court wrote. “Neither the LAD nor our case law requires such an investigation, and we decline to impose this burden.”