SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.
Victoria Crisitello v. St. Theresa School (A-63-20) (085213)
Argued April 24, 2023 -- Decided August 14, 2023 -- Revised August 14, 2023
SOLOMON, J., writing for the Court.
The Court considers whether defendant, the Church of St. Theresa (St.
Theresa’s), was entitled to summary judgment in a suit brought by Victoria
Crisitello alleging employment discrimination contrary to the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49, when she was fired from her position
as an art teacher and toddler room caregiver because she became pregnant while
unmarried in violation of the terms of her employment agreement, which required
employees to abide by the teachings of the Catholic Church.
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 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,
finding that “the LAD clearly protects a religious institution . . . in requiring that an
employee . . . abide by the principles of the Catholic faith,” and no suggestion that
Crisitello was terminated “for her pregnancy or marital status, per se.” It held
Crisitello was instead terminated for “violating the tenets of the Catholic Church,
thereby violating the Code of Ethics.” It also found the First Amendment barred her
claims. The Appellate Division reversed, holding that the First Amendment barred
neither Crisitello’s claims nor “carefully measured discovery”; that the LAD did not
bar consideration of the matter under the framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973); and that Crisitello had made a prima facie case.
1
On remand, the trial court compelled discovery consistent with the Appellate
Division’s decision, and it again granted summary judgment in favor of St.
Theresa’s. The court explained that “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.” 465 N.J. Super. 223, 227, 238, 242
(App. Div. 2020). 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.” Id. at 235-36. 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. Id. at 242.
St. Theresa’s filed a notice of appeal as of right under Rule 2:2-1(a)(1) as well
as a petition for certification, which the Court granted. 246 N.J. 315 (2021).
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. Here, it is uncontroverted that St. Theresa’s followed the religious
tenets of the Catholic Church in terminating Crisitello. St. Theresa’s was therefore
entitled to summary judgment and the dismissal of the complaint with prejudice.
1. The LAD provides in part that it is unlawful for an employer “to discharge” an
employee “because of . . . marital status . . . [or] pregnancy.” N.J.S.A. 10:5 -12(a).
Although the LAD encompasses a wide variety of employment actions, it
intentionally, and explicitly, declines to create a cause of action for others. For
example, “it shall not be an unlawful employment practice . . . for a religious
association or organization” to follow “the tenets of its religion in establishing and
utilizing criteria for employment of an employee.” Ibid. Because the Legislature
thus 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. In LAD cases where a religious employer invokes the religious tenets
exception, the employer must demonstrate that the challenged employment decision
2
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 decision relied solely on the religious tenets of the employer, then the
affirmative defense stands as an absolute bar to liability. Determining whether a
religious employer’s employment action was based exclusively on the tenets of its
religion requires application of only neutral principles of law and does not
impermissibly entangle the courts in ecclesiastical matters. (pp. 20-26)
2. Based on the facts of this case, St. Theresa’s has validly asserted the religious
tenets exception as an affirmative defense. The undisputed evidence of record
shows that Crisitello confirmed receipt and understanding of documents including
the Code of Ethics. 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. Crisitello, a practicing Catholic and graduate
of the St. Theresa School, 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. 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. The Court rejects 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. Neither the LAD nor case law requires such an
investigation, and the Court declines to impose this burden. Here, because Crisitello
offers no evidence that the reason given for her termination was false, there exists no
dispute of material fact and St. Theresa’s is entitled to judgment as a matter of law.
The religious tenets exception of the LAD precludes recovery here. The Court does
not reach the constitutional questions presented. (pp. 27-32)
REVERSED.
JUSTICE PIERRE-LOUIS, concurring, agrees that Crisitello’s LAD action
fails but departs from the majority’s analysis of the religious tenets exception as an
affirmative defense such that the McDonnell Douglas framework does not apply. In
Justice Pierre-Louis’s view, plaintiff’s claim fails because she has failed to meet her
evidentiary burden at step three of the McDonnell Douglas framework.
CHIEF JUSTICE RABNER, JUSTICE PATTERSON, and JUDGE HAAS
(temporarily assigned) join in JUSTICE SOLOMON’s opinion. JUSTICE
PIERRE-LOUIS filed a concurrence. JUSTICES WAINER APTER and
FASCIALE and JUDGE SABATINO (temporarily assigned) did not participate.
3
SUPREME COURT OF NEW JERSEY
A-63 September Term 2020
085213
Victoria Crisitello,
Plaintiff-Respondent,
v.
St. Theresa School,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
465 N.J. Super. 223 (App. Div. 2020).
Argued Decided Revised
April 24, 2023 August 14, 2023 August 14, 2023
Peter G. Verniero argued the cause for appellant (Sills
Cummis & Gross, and Carella, Byrne, Cecchi, Olstein,
Brody & Agnello, attorneys; Peter G. Verniero, Michael
S. Carucci, and Christopher H. Westrick, of counsel and
on the briefs).
Thomas A. McKinney argued the cause for respondent
(Castronovo & McKinney, attorneys; Thomas A.
McKinney and Edward W. Schroll, of counsel and on the
brief).
Mark E. Chopko of the District of Columbia and
Pennsylvania bars, admitted pro hac vice, argued the
cause for amicus curiae New Jersey Catholic Conference
(Stradley Ronon Stevens & Young, and McKernan,
McKernan & Godino, attorneys; Mark E. Chopko,
1
Marissa Parker, Robert J. Norcia, Martin McKernan, and
James J. Godino, Jr., of counsel and on the brief).
Eric C. Rassbach (The Becket Fund for Religious
Liberty) of the California, Texas, and District of
Columbia bars, admitted pro hac vice, argued the cause
for amicus curiae Agudath Israel of America (Roselli
Griegel Lozier & Lazzaro, attorneys; Eric C. Rassbach,
Mark M. Roselli, and Daniel D. Benson (The Becket
Fund for Religious Liberty) of the Utah and District of
Columbia bars, admitted pro hac vice, of counsel and on
the brief).
Jeremy Feigenbaum, Solicitor General, argued the cause
for amicus curiae Attorney General of New Jersey
(Matthew J. Platkin, Attorney General, attorney; Jeremy
Feigenbaum and Alec Schierenbeck, Deputy Solicitor
General, of counsel, and Eve Weissman and Nadya
Comas, Deputy Attorneys General, on the brief).
Ronald K. Chen argued the cause for amici curiae
American Civil Liberties Union of New Jersey and
American Civil Liberties Union (Rutgers Constitutional
Rights Clinic Center for Law & Justice, attorney; Lindsey
Kaley (American Civil Liberties Foundation) of the New
York bar, admitted pro hac vice, of counsel and on the
brief, and Ronald K. Chen, Jeanne LoCicero (American
Civil Liberties Union of New Jersey Foundation),
Alexander Shalom (American Civil Liberties Union of
New Jersey Foundation), and Daniel Mach (American
Civil Liberties Union Foundation) of the New York and
District of Columbia bars, admitted pro hac vice, on the
brief).
Natalie J. Kraner argued the cause for amici curiae
National Women’s Law Center, Americans United for
Separation of Church and State, The Anti-Defamation
League, California Women’s Lawyers, The
Clearinghouse on Women’s Issues, The Feminist
Majority Foundation, Gender Justice, GLBTQ Legal
2
Advocates & Defenders, The Kentucky Association of
Sexual Assault Programs, KWH Law Center for Social
Justice and Change, Interfaith Alliance Foundation, Legal
Voice, The National Asian Pacific American Women’s
Forum, The National Association of Social Workers, The
National Association of Women Lawyers, The National
Coalition Against Domestic Violence, The National
Council of Jewish Women, National Crittenton, The
Reproductive Health Access Project, The Sikh Coalition,
The Women’s Law Center of Maryland, Inc.,
Transgender Law Center, Ujima, Inc: The National
Center on Violence Against Women in the Black
Community, Women Employed, Women With A Vision,
Inc., The Women’s Bar Association of the District of
Columbia, The Women’s Bar Association of the State of
New York, and Women’s Law Project (Lowenstein
Sandler, attorneys; Natalie J. Kraner, Matthew J. Platkin,
Stephanie Ashley, Markiana Julceus, Sunu P. Chandy and
Laura Narefsky (National Women’s Law Center) of the
New York bar, admitted pro hac vice, Bradley Girard
(Americans United for Separation of Church and State) of
the New York and District of Columbia bars, admitted
pro hac vice, and Richard B. Katskee (Americans United
for Separation of Church and State) of the District of
Columbia and Maryland bars, on the brief).
James E. Burden submitted a brief on behalf of amicus
curiae New Jersey Association for Justice (Javerbaum
Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys;
James E. Burden, on the brief).
JUSTICE SOLOMON delivered the opinion of the Court.
The Church of St. Theresa (St. Theresa’s) owns and operates the St.
Theresa School. St. Theresa’s terminated art teacher and toddler room
caregiver Victoria Crisitello for violating the terms of her employment
3
agreement. That agreement required employees to abide by the teachings of
the Catholic Church and forbade employees from engaging in premarital sex;
Crisitello, who was unmarried, had become pregnant. In response to her
firing, Crisitello filed a complaint against St. Theresa’s alleging employment
discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A.
10:5-1 to -49, based on pregnancy and marital status. St. Theresa’s countered
that its decision to terminate Crisitello was protected by both the First
Amendment and the LAD.
In this appeal, we examine whether the Appellate Division properly
reversed the trial court’s grant of summary judgment and dismissal of the
complaint with prejudice in favor of St. Theresa’s. In doing so, we must
consider the LAD, its “religious tenets” exception, and the McDonnell
Douglas1 burden-shifting framework. Because we decide this case on narrow,
statutory grounds, we decline to rule on the parties’ constitutional arguments
concerning the First Amendment.
We first hold that 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
1
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
4
confronted with a claim of employment discrimination. Second, the
uncontroverted fact is that St. Theresa’s followed the religious tenets of the
Catholic Church in terminating Crisitello. We thus conclude that St. Theresa’s
was entitled to summary judgment and that the trial court correctly dismissed
the complaint with prejudice.
I.
A.
The St. Theresa School is a Roman Catholic elementary school operating
within the Archdiocese of Newark. The school uses the official “Archdiocese
of Newark Policies on Professional and Ministerial Conduct” (Ministerial
Policies), 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.”
St. Theresa’s also has a faculty handbook that explains the importance of
teachers “express[ing] a value-centered approach to living” and serving “as
positive role models for their students.”
In 2011, St. Theresa’s hired Crisitello, a former student, to work as a
caregiver in the toddler room. When she was hired, Crisitello signed an
acknowledgment form which explained: “My signature below indicates that I
have received a copy of the Policies on Professional and Ministerial Conduct
5
adopted by the Archdiocese of Newark; and that I have read and understand
those Policies, including the Archdiocesan Code of Ethics, and agree to abide
by all of the Policies and the Code of Ethics.” About a year later, Crisitello
was asked to teach art to elementary school students in addition to working in
the toddler room. In that role, she taught two days a week and worked one day
in the toddler room. In 2014, Sister Lee, the school principal, approached
Crisitello about the possibility of her teaching art full time. Crisitello, who
was unmarried at the time, told Sister Lee that she wanted a raise if she
accepted the new role, explaining that she was pregnant and that it would thus
be more taxing to work additional hours.
A few weeks later, Sister Lee met with Crisitello to explain that she had
violated the Code of Ethics by engaging in premarital sex and thus could not
remain on St. Theresa’s staff. Sister Lee offered Crisitello the option of
resigning or being terminated. Ultimately, Crisitello was terminated and
replaced by a married woman with children.
B.
1.
In April 2014, Crisitello filed a charge against St. Theresa’s with the
Equal Employment Opportunity Commission (EEOC or Commission), alleging
violations of Title VII of the Civil Rights Act. The EEOC directed St.
6
Theresa’s to provide its position on the issues charged with supporting
documentation. St. Theresa’s provided supporting documents and responded
that “Crisitello was not terminated because of her pregnancy. She was
terminated for violation of the Code of Professional and Ministerial Conduct
. . . and not following the tenets of the Roman Catholic faith by engaging in
sex outside of marriage.”
Ultimately, the EEOC was unable to “conclude that the information
obtained establishes a violation” of the Civil Rights Act. The Commission
noted that its conclusion was not tantamount to a finding of compliance with
Title VII and that Crisitello could still file an action in federal district court.
2.
Later that same year, Crisitello filed a complaint against St. Theresa’s in
New Jersey Superior Court alleging that St. Theresa’s violated the LAD by
discriminating against her on the basis of pregnancy (count one) and marital
status (count two). According to Crisitello’s complaint, the school’s
explanation for her termination -- her violation of the tenets of the Catholic
faith -- was “mere pretext.”
In early 2015, St. Theresa’s moved for summary judgment and dismissal
of the complaint, arguing that it lawfully terminated Crisitello’s employment.
The trial court denied the motion, citing the need for discovery. The parties
7
disputed the scope of discovery, and the court granted Crisitello’s request for
information related exclusively to St. Theresa’s employees who were pregnant
during the period of Crisitello’s employment, subject to a confidentiality order.
The court denied the remainder of Crisitello’s discovery requests.
After the parties exchanged limited discovery, St. Theresa’s again
moved for summary judgment and to dismiss the complaint. In a November
2016 order, the court granted summary judgment in favor of St. Theresa’s,
dismissing the complaint with prejudice and determining that a “plain reading
of the LAD clearly protects a religious institution, such as St. Theresa’s, in
requiring that an employee, such as [Crisitello], abide by the principles of the
Catholic faith.” The court found nothing to suggest that Crisitello was
terminated “for her pregnancy or marital status, per se,” and held that she was
instead terminated for “violating the tenets of the Catholic Church, thereby
violating the Code of Ethics and Archdiocese Policies.”
In explaining its decision, the court noted that Crisitello’s act of
revealing her pregnancy to Sister Lee defeated her argument that she was
“singled out.” The court observed that Crisitello lacked viable comparators
because all other pregnant women employed by St. Theresa’s were married.
Moreover, the court noted that another school within the Archdiocese of
Newark -- utilizing the same ministerial policies and code of ethics as St.
8
Theresa’s -- had fired an unmarried male employee after learning that he had
impregnated his partner. The court declined to entertain Crisitello’s “novel
suggestion” that, in order to defeat her claim, St. Theresa’s should “survey” its
employees to discover whether any of them had committed transgressions of
the faith. Last, the court found that the First Amendment barred Crisitello’s
claims, even if the LAD’s religious tenets exception did not apply, because
secular court involvement here would be an unconstitutional entanglement
with religious affairs.
The trial court denied Crisitello’s motion for reconsideration.
3.
Crisitello appealed, challenging the trial court’s orders denying
discovery and reconsideration, and granting summary judgment and dismissal
of the complaint. The Appellate Division reversed the orders in an
unpublished decision and remanded for further proceedings.
The Appellate Division agreed in principle with the trial court that
secular courts cannot decide purely religious disputes, but it found that the
dispute at the heart of this case -- which it viewed as whether St. Theresa’s
asserted reason for termination was pretextual -- was within the bounds of civil
jurisdiction. The Appellate Division explained that “when the pretext inquiry
neither traverses questions of the validity of religious beliefs nor forces a court
9
to choose between parties’ competing religious visions, [it] does not present a
significant risk of entanglement.” The Appellate Division thus concluded that
the First Amendment barred neither Crisitello’s claims nor “carefully
measured discovery” and proceeded to consider the LAD.
The court interpreted N.J.S.A. 10:5-12(a) to mean that “[d]iscriminatory
intent or any other element of an LAD claim cannot be established by a
religious institution requiring an employee to follow the tenets of its religion
as a condition of employment.” The Appellate Division found, however, that
the LAD did not bar consideration of this matter under the familiar McDonnell
Douglas framework,2 concluding that Crisitello had made a prima facie case
for discrimination under the LAD.
As to the first prong of McDonnell Douglas, the court found that
Crisitello had (1) established membership in a protected class -- pregnant
2
In McDonnell Douglas, the United States Supreme Court set forth the
framework for proving a case of employment discrimination under Title VII of
the Civil Rights Act. 411 U.S. at 802. Under that regime, a plaintiff employee
bears the initial burden of establishing a prima facie case of discrimination.
Ibid. If the plaintiff does so, the burden shifts to the defendant employer to
articulate a “legitimate, nondiscriminatory reason” for the complained -of
employment decision. Id. at 802-03. If the defendant provides such a reason,
the plaintiff must “be afforded a fair opportunity to show that [the defendant’s ]
stated reason” for the employment decision was “in fact pretext.” Id. at 803-
05. Our courts apply the McDonnell Douglas framework to employment
discrimination claims cognizable under the LAD. See, e.g., Meade v.
Township of Livingston, 249 N.J. 310, 328 (2021).
10
women; (2) proved her qualifications for her position; and (3) suffered an
adverse employment action -- termination. The court also found that the
circumstances of her firing gave rise to an inference of unlawful discrimination
and rejected the trial court’s conclusion that Crisitello’s nonmarital pregnancy
rendered her unqualified for her job. Because St. Theresa’s had asserted a
nondiscriminatory reason for terminating Crisitello, the Appellate Division
turned to the third prong of McDonnell Douglas -- whether that asserted reason
was pretextual.
The court explained that whether St. Theresa’s asserted reason was
pretextual or not required “inquiry into material questions of fact,” and that
summary judgment was therefore inappropriate at that juncture. The court
noted that the lack of evidence before the trial court on summary judgment was
“directly attributable” to that court’s own discovery limitations. The Appellate
Division thus reversed the relevant orders and remanded for discovery as to
how St. Theresa’s treated similarly situated employees that it knew were in
violation of its Code of Ethics.
C.
1.
On remand, the trial court compelled discovery consistent with the
Appellate Division’s decision. After the close of discovery, St. Theresa’s
11
again sought summary judgment. In April 2019, the court heard argument on
the motion and again granted St. Theresa’s motion for summary judgment,
dismissing the complaint with prejudice.
The court explained that “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” and noted that Crisitello had not demonstrated that
“other single pregnant teachers or [unmarried] male teachers who had
impregnated another had not been fired,” or “that married teachers who
violated the tenets of the Faith were treated differently than single teachers.”
The court found that Crisitello likewise had not identified any “inconsistency
or implausibility” in St. Theresa’s explanation. In other words, the court found
that Crisitello presented no comparators through which to establish disparate
treatment. 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 .
Thus, the trial court held on remand that Crisitello failed to show that St.
Theresa’s “proffered reason [for her termination] was false and that the real
reason was motivated by discriminatory intent.” The trial court concluded that
no reasonable factfinder could rule in Cristello’s favor.
12
2.
Crisitello appealed, and the Appellate Division reversed the trial court’s
judgment, 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,” and reaffirming its earlier determination
that Crisitello made a prima facie case of discrimination under the LAD.
Crisitello v. St. Theresa Sch., 465 N.J. Super. 223, 227, 238, 242 (App. Div.
2020).
The Appellate Division also distinguished this case from Our Lady of
Guadalupe School v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049 (2020),
decided under the First Amendment to the United States Constitution during
the pendency of this appeal. The appellate court reasoned that the plaintiffs in
Guadalupe performed “vital religious duties” whereas Crisitello did not.
Crisitello, 465 N.J. Super. at 235-36. The court also rejected the notion that
Crisitello’s agreement to serve as an exemplar of the Christian faith and
abstain from “immoral conduct” rendered her something other than a lay
teacher for purposes of Guadalupe. Id. at 236.
Applying the standard for summary judgment, the Appellate Division
explained that a reasonable factfinder could rule in Crisitello’s favor. Id. at
237. As for the first step of the McDonnell Douglas framework, the court
13
reiterated its earlier conclusion that Crisitello had stated a prima facie case of
discrimination. Id. at 237-38. Concerning the second step, the court explained
that “assuming the terms of [Crisitello’s] employment included an enforceable
agreement [that] she would not engage in premarital sex, [St. Theresa’s has]
satisfied its ‘burden of production.’” Id. at 239.
The court also found that Crisitello satisfied the third prong of
McDonnell Douglas. Id. at 241. Citing to Cline v. Catholic Diocese of
Toledo, 206 F.3d 651, 667 (6th Cir. 1999), and Redhead v. Conf. of Seventh-
Day Adventists, 440 F. Supp. 2d 211, 223 (E.D.N.Y. 2006), the Appellate
Division explained that an employer cannot rely on the mere observation of a
woman’s pregnancy to identify instances of premarital sex. Id. at 240-42.
According to the Appellate Division, such a mode of detection is itself
evidence of pretext because only women can get pregnant. Id. at 241. Here,
the Appellate Division noted that St. Theresa’s made no effort to discover
whether other teachers had engaged in premarital sex or other ethical
violations and found that such a lack of investigation raised an issue of
material fact as to whether St. Theresa’s enforced its policy in a discriminatory
manner. Id. at 241-42.
Further, the Appellate Division ruled that despite Crisitello’s concession
-- that she knew premarital sex violated the tenets of the Catholic Church --
14
neither the Code of Ethics nor the employee handbook expressly mentioned
premarital sex or that it would result in termination. Id. at 242.
D.
Citing the First Amendment to the United States Constitution, St.
Theresa’s filed a notice of appeal as of right under Rule 2:2-1(a)(1). St.
Theresa’s also filed a self-described “protective” petition for certification,
arguing that its decision to terminate Crisitello’s employment was protected
under state law. We granted the petition. 246 N.J. 315 (2021).
We also granted leave to appear as amici curiae to the New Jersey
Catholic Conference; Agudath Israel of America; the New Jersey Attorney
General; the American Civil Liberties Union of New Jersey and the American
Civil Liberties Union (jointly, ACLU); the National Women’s Law Center,
Americans United for Separation of Church and State, “and 26 additional
organizations” (collectively, NWLC); and the New Jersey Association for
Justice (NJAJ).
II.
A.
St. Theresa’s asks us to reverse the Appellate Division. Regarding the
LAD, St. Theresa’s argues that the statute’s religious tenets exception is an
affirmative defense that preserves a wall of separation between church and
15
state and exists to relieve religious employers from the burdens of employment
litigation. St. Theresa’s further argues that if the LAD’s religious tenets
exception does not mandate dismissal, Crisitello had to show evidence of
“disparate treatment” or prove that St. Theresa’s asserted reason for her
termination was “false, implausible or inconsistently applied.” St. Theresa’s
argues that the Appellate Division’s allowed Crisitello to clear a much lower
hurdle -- merely showing that St. Theresa’s did not affirmatively investigate
the conduct of its entire teaching staff to discover other violations of Catholic
law.
St. Theresa’s also advances constitutional bases for reversing the
Appellate Division’s decision. First, St. Theresa’s claims that the ministerial
exception, as most recently explained in Guadalupe, applies to lay teachers
with religious duties like Crisitello. In addition to the ministerial exception,
St. Theresa’s argues that general considerations of church autonomy protect its
decision to fire Crisitello because, on these facts, church doctrine is
“inextricably linked” with Crisitello’s claims and secular adjudication would
therefore interfere with religious autonomy.
The Catholic Conference and Agudath Israel support St. Theresa’s
position and stress that allowing Crisitello’s suit to move forward would
16
infringe upon the school’s decisions regarding faith, doctrine, and internal
governance.
B.
Crisitello argues that this case presents “a factual dispute” as to whether
St. Theresa’s proffered religious reason for her termination -- engaging in
premarital sex -- is pretext for pregnancy and marital-status discrimination in
violation of the LAD, and that summary judgment was therefore inappropriate.
Specifically, Crisitello notes that other courts have deemed it evidence of
pretext for a religious employer to enforce a prohibition on premarital sex
based on observations of pregnancy. Crisitello rejects the argument that the
ministerial exception applies because, as a lay teacher, she did not perform
religious duties as required by Guadalupe. Crisitello asserts that the First
Amendment is no obstacle to her claims.
The Attorney General supports Crisitello’s view of the applicable laws
in this appeal. Regarding the LAD, the Attorney General interprets the
religious tenets exception as embracing the traditional burden-shifting
framework and submits that this case hinges on whether Crisitello has made a
sufficient showing of pretext. The Attorney General claims that because the
New Jersey Division on Civil Rights is charged with enforcing the LAD, we
should defer to its interpretation of the statute.
17
Turning to the constitutional issues, the Attorney General urges us to
reject St. Theresa’s views on the ministerial exception because such an
interpretation would leave employees of religious institutions without the
protection of antidiscrimination law. The Attorney General asserts that “a
general expectation that employees exemplify religious values and integrate
them into their work is [not] enough to make an employee subject to the
ministerial exception” under Guadalupe.
The ACLU contends that the LAD’s religious tenets exception does not
“permit a religious association to use any . . . protected criteria, apart from
religious affiliation, in making employment decisions” and asks us to require
that employment agreements “clearly and unambiguously signal” that the
plaintiff is surrendering the right to pursue statutory LAD claims in court.
The NWLC and NJAJ likewise support Crisitello’s position. They focus
on the First Amendment, touching on the LAD only to note that the LAD’s
religious tenets exception should not be read to exceed the ministerial
exception. Additionally, the NJAJ argues that, because this case does not
involve an interpretation of religious tenets, St. Theresa’s decision to terminate
Crisitello is subject to judicial scrutiny, which should be guided by the
McDonnell Douglas burden-shifting framework.
18
III.
We review the grant or denial of summary judgment de novo and apply
the same legal standard as the trial court. Samolyk v. Berthe, 251 N.J. 73
(2022). Summary judgment is appropriate “when ‘the pleadings, 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 challenged
and that the moving party is entitled to a judgment or order as a matter of
law.’” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995)
(quoting R. 4:46-2). Because St. Theresa’s moved for summary judgment, we
view the evidence in the light most favorable to Crisitello and draw all
reasonable inferences in her favor. See Winberry Realty P’ship v. Borough of
Rutherford, 247 N.J. 165, 176 (2021). We owe no deference to conclusions of
law that flow from established facts. State v. Perini Corp., 221 N.J. 412, 425
(2015).
St. Theresa’s offers both statutory and constitutional arguments in
support of reversal. We have long instructed that our courts “should not reach
and determine a constitutional issue unless absolutely imperative in the
disposition of the litigation.” Donadio v. Cunningham, 58 N.J. 309, 325-26
(1971). Where, as here, there are two independent grounds to dispose of an
19
appeal -- one statutory and one constitutional -- we will first resolve the
statutory issue and address the Constitution only if necessary.
In interpreting a statute, in this case the LAD, our goal is to identify and
implement the intent of the Legislature. Smith v. Millville Rescue Squad, 225
N.J. 373, 389 (2016). In doing so, our inquiry starts with the text of the statute
itself. Ibid. If the text is unambiguous, our inquiry ends with the text and its
ordinary, common-sense meaning controls. See id. at 389-90. We therefore
begin with the text of the LAD.
A.
The LAD provides in part that it is unlawful for an employer “to
discharge” an employee “because of . . . marital status . . . [or] pregnancy.”
N.J.S.A. 10:5-12(a). Although the LAD encompasses a wide variety of
employment actions, it intentionally, and explicitly, declines to create a cause
of action for others, explaining that
it shall not be an unlawful employment practice . . . for
a religious association or organization to utilize
religious affiliation as a uniform qualification in the
employment of clergy, religious teachers or other
employees engaged in the religious activities of the
association or organization, or in following the tenets
of its religion in establishing and utilizing criteria for
employment of an employee . . . .
[Ibid. (emphases added).]
20
As relevant here, N.J.S.A. 10:5-12(a) does two things. First, it identifies
certain actions by employers as subject to a cause of action by employees.
Second, it approves other actions by employers as lawful and thus exempt
from liability. The underscored text -- the LAD’s religious tenets exception --
is housed within the section of the statute devoted to protecting certain
employment decisions from a cause of action. That placement is significant.
See, e.g., Malanga v. Township of West Orange, 253 N.J. 291, 310 (2023)
(explaining that courts “look to other parts of the statute for context.”).
For employers that are religious associations or organizations, N.J.S.A.
10:5-12(a) thus provides that two types of conduct will not give rise to a cause
of action: (1) the use of religious affiliation as a job qualification for
“employees engaged in the religious activities” of the organization; and (2)
“following the tenets of its religion in establishing and utilizing criteria for
employment of an employee.”
Because the Legislature thus 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, we agree with St. Theresa’s that the
religious tenets exception is an affirmative defense which must be pled and
proven, and the party asserting it carries both the burden of production and
persuasion. Stewart v. N.J. Turnpike Auth., 249 N.J. 642, 657 (2022); R. 4:5-
21
3, -4. If the affirmative defense is pled and proven, the employer need not
contest the plaintiff’s allegations.
Our cases concerning immunity under the Tort Claims Act (TCA) are
instructive in this regard. For example, in Nieves v. Office of the Public
Defender, we applied the TCA in the context of a public defender faced with a
legal malpractice claim. 241 N.J. 567, 580 (2020). Generally speaking, when
an attorney breaches a duty of care owed to a client, the attorney is liable for
damages proximately caused by the breach. Gilbert v. Stewart, 247 N.J. 421,
442-43 (2021). If that attorney is a public employee, the Tort Claims Act
applies. Nieves, 241 N.J. at 580. So, if a public defender is sued for legal
malpractice, he can either disprove the plaintiff’s factual allegations or
demonstrate that he is immune from liability as a public employee under
N.J.S.A. 59:2-1. If there is no genuine dispute of material fact concerning the
public defender’s status for purposes of the TCA, the case can be resolved on
summary judgment. See id. at 585 (affirming the grant of summary judgment
in favor of a public defender based on TCA immunity).
Similarly, the Consumer Fraud Act (CFA) authorizes one who has
suffered an “ascertainable loss” because of another person’s “use or
employment” of any “method, act, or practice” deemed unlawful under the
CFA to recover that loss in an action at law. N.J.S.A. 56:8-19. But we have
22
recognized that “learned professionals” are exempt from CFA claims
stemming from the professional’s sales or marketing of services that they are
licensed to provide. See, e.g., Macedo v. Dello Russo, 178 N.J. 340, 345-46
(2004) (noting that “learned professionals [are] beyond the reach of the [CFA]
so long as they are operating in their professional capacities” and that
“advertisements by learned professionals in respect of the rendering of
professional services are insulated from the CFA”). Thus, if a learned
professional demonstrates that the plaintiff’s claims challenge actions or
omissions performed in a professional capacity, including the advertisement of
professional services, the professional is entitled to judgment as a matter of
law when confronted with a claim arising under the CFA. See id. at 342-43
(holding that a CFA complaint brought against a learned professional was
properly dismissed); Vort v. Hollander, 257 N.J. Super. 56, 62-63 (App. Div.
1992) (affirming the grant of summary judgment on a CFA claim because the
“learned professional” exception applied).
The statute of limitations defense is also “not self-executing” and must
be affirmatively raised. Zaccardi v. Becker, 88 N.J. 245, 256 (1982). For
example, the Legislature has prescribed that “a construction-defect action must
be commenced within six years ‘after the cause of any such action shall have
accrued.’” The Palisades at Fort Lee Condo. Ass’n, Inc. v. 100 Old Palisade,
23
LLC, 230 N.J. 427, 434 (2017) (quoting N.J.S.A. 2A:14-1). When a defendant
builder is sued for a construction defect, he can either argue that the
construction was not defective or, if appropriate, raise the statute of limitations
as an affirmative defense.
If the builder asserts the statute of limitations, he must show when the
cause of action accrued. In the case of construction-defect actions, the cause
of action accrues when “the building’s original or subsequent owners first
knew, or through the exercise of reasonable diligence, should have known of
the basis for a cause of action.” Id. at 435. If there is no genuine dispute of
material fact as to when the alleged defect was discovered, the case can be
resolved on summary judgment; the judge need only decide whether it has
been six years since accrual. But if the plaintiff raises a genuine dispute of
material fact about when the defect was discovered, summary judgment is
inappropriate, and the case should proceed. See, e.g., Brill, 142 N.J. at 528-
29.
The LAD similarly includes affirmative defenses. In Poff v. Caro, for
example, the Law Division considered a complaint brought by the Division of
Civil Rights against a property owner who had refused to rent a three -bedroom
apartment “because he believed that the three males [seeking to rent the
apartment] would likely get AIDS because they were homosexuals” and he
24
“fear[ed] that his family might be exposed to a terrifying disease.” 228 N.J.
Super. 370, 378, 380 (Law Div. 1987). Citing N.J.S.A. 10:5-5(n) -- which
identifies what the term “real property” encompasses for purposes of the L AD
and then states “provided, however, that, except as to publicly assisted housing
accommodations, the provisions of this act shall not apply to the rental . . . of a
single apartment or flat in a two-family dwelling, the other occupancy unit of
which is occupied by the owner as a residence” -- “[t]he landlord contend[ed]
that he is exempt from the law against discrimination since he is renting an
apartment in a two-family owner occupied house.” Id. at 379. Noting that
“[t]he facts here indicate that the landlord had turned his premises into a three
family not a two family house,” the court concluded that the asserted
affirmative defense failed and that the landlord was “not exempt from the
statute.” Ibid.
We see no meaningful distinction between the affirmative defenses
created in those settings and the religious tenets exception. 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
25
tenets of the employer, then the affirmative defense stands as an absolute bar
to liability.3 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. Brill,
142 N.J. at 528-29.
With those principles in mind, we consider whether St. Theresa’s was
entitled to summary judgment. We note, as an initial matter, our agreement
with the Appellate Division that deciding whether St. Theresa’s terminated
Crisitello for failing to adhere to the employment criteria St. Theresa’s had
established “in following the tenets of its religion,” see N.J.S.A. 10:5-12(a), is
within the court’s purview. Determining whether a religious employer’s
employment action was based exclusively on the tenets of its religion requires
application of only neutral principles of law and does not impermissibly
entangle the courts in ecclesiastical matters. See McKelvey v. Pierce, 173 N.J.
26, 51-53 (2002).
3
We disagree with the Attorney General’s interpretation that the religious
tenets exception affords to the employer nothing more than a legitimate,
nondiscriminatory reason for an employment action under the McDonnell
Douglas framework. If the affirmative defense is pled and proven, the
McDonnell Douglas burden-shifting analysis is inapplicable.
26
B.
Based on the facts of this case, we conclude that St. Theresa’s has
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. We therefore find that St. Theresa’s was entitled
to summary judgment as a matter of law.
The undisputed evidence of record shows that Crisitello signed two
acknowledgment forms that provide:
My signature below indicates that I have received a
copy of the Policies on Professional and Ministerial
Conduct adopted by the Archdiocese of Newark; and
that I have read and understand those Policies,
including the Archdiocesan Code of Ethics, and agree
to abide by all of the Policies and the Code of Ethics.
The Code of Ethics, which is the first section of the Ministerial Policies asks
that all church personnel 4 “carefully consider each standard in the Code and
within the Policies on Professional and Ministerial Conduct before agreeing to
adhere to the standards and continue in service to the Archdiocese.”
4
The Ministerial Policies define “[c]hurch personnel” to include “The Lay
Faithful,” which includes “[a]ll paid personnel whether employed in areas of
ministry or other kinds of services by the Archdiocese, its parishes, schools or
other agencies; also, those who contract their services to Catholic Church
agencies,” and “[a]ll volunteers.”
27
The Code of Ethics instructs that church personnel “shall exhibit the
highest Christian ethical standards and personal integrity” and “conduct
themselves in a manner that is consistent with the discipline, norms and
teachings of the Catholic Church.” The Code of Ethics also recites that “[a]ll
Church personnel are required to read and sign the agreement to abide by these
policies and the Archdiocesan Code of Ethics.” The Ministerial Policies go on
to specify that “misconduct includes but is not limited to . . . [i]mmoral
conduct,” defined as “[c]onduct that is contrary to the discipline and teachings
of the Catholic Church.”
In a section titled “Standards of the Archdiocese as to Prevention of
Immoral Conduct,” the Ministerial Policies provide that “[i]t is essential that
Church personnel view their own actions and intentions objectively to assure
that no observer would have grounds to believe that irregularity in conduct
exists. All Church personnel have a responsibility to strive to uphold the
standards of the Catholic Church in their day-to-day work and personal lives.”
The Ministerial Policies further provide that it is “fundamental to the mission
of the Archdiocese that Church personnel exhibit the highest ethical standards
and personal integrity. The purpose of this policy is to insure that all Churc h
personnel follow the ethical standards of the Catholic Church.” That section
28
goes on to provide that church personnel are forbidden from engaging in
“[a]dultery, flagrant promiscuity or illicit co-habitation.”
St. Theresa’s also provided a certification from Deacon John J.
McKenna, which explained that
[o]ne of the tenets of the Roman Catholic Church is that
sex outside of the institution of marriage is forbidden.
To engage in sex outside of marriage is a sin. It is not
consistent with the discipline, norms and teachings of
the Roman Catholic Church, i.e. it violates the religious
tenets of the Catholic Church.
The religious tenets exception allowed St. Theresa’s to require its
employees, as a condition of employment, to abide by Catholic law, includi ng
that they abstain from premarital sex. Crisitello, a practicing Catholic and
graduate of the St. Theresa School, 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. In other words, St.
Theresa’s required adherence to Catholic law, and Crisitello knowingly
violated Catholic law.
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. From letters sent to Crisitello after her
termination “confirm[ing] that . . . [St. Theresa’s] asked [her] to resign [her]
position at [the] school for violation of the Code of Professional and
29
Ministerial Conduct of the Archdioceses of Newark”; to Sister Lee’s testimony
about the meeting in which she informed Crisitello of her termination; to St.
Theresa’s response to the EEOC charge that “Crisitello was not terminated
because of her pregnancy. She was terminated for violation of the Code of
Professional and Ministerial Conduct . . . and not following the tenets of the
Roman Catholic faith by engaging in sex outside of marriage”; to the position
it has taken throughout this litigation, St. Theresa’s has remained steadfast in
basing its employment action on Crisitello’s violation of the terms of her
employment as permissibly derived from the tenets of the Catholic faith.
And Crisitello has presented no evidence to counter St. Theresa’s
asserted position. There is no evidence that St. Theresa’s discriminated based
on Crisitello’s pregnancy. It is undisputed that Sister Lee was unaware of the
pregnancy until Crisitello disclosed it while the two negotiated Crisitello’s
salary and that St. Theresa’s did not terminate the employment of any pregnant
teachers who were married. There is also no evidence of discrimination with
respect to marital status. Crisitello admitted that, long before she became
pregnant, it was commonly known that she was unmarried. The record is also
clear that St. Theresa’s employed both married and unmarried teachers.
The Appellate Division reasoned that the lack of evidence regarding
“how male or non-pregnant female teachers . . . who engaged in premarital sex
30
were detected or treated” precluded summary judgment. Crisitello, 465 N.J.
Super. at 231. The Appellate Division explained that because only women can
become pregnant, it is evidence of pretext for an employer to discipline
violations of its ban on premarital sex through observations of pregnancy or
fortuitous discovery. Id. at 240-42. Thus, according to the Appellate Division,
an ecclesiastical employer cannot lawfully dismiss a member of a protected
class for violating requirements of its employment agreement derived from
religious tenets unless the employer first determines, following an
investigation, that no other employees violated the same or another religious
tenet.
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. Neither the LAD
nor our case law requires such an investigation, and we decline to impose this
burden.
The difficulty of such a rule is evident when it is applied to a secular
employer. For example, if an unmarried, pregnant woman is fired for
embezzling money and brings an action under the LAD, she will survive
summary judgment by simply asserting that the reason for her termination --
that she was caught embezzling -- is mere pretext for discrimination, unless the
31
employer had already investigated whether there were other instances of
embezzlement by married or nonpregnant employees, to rebut the claim of
pretext. The fact that St. Theresa’s did not survey its employees to discover
other transgressions cannot by itself carry the plaintiff’s burden of raising a
genuine issue of material fact as to a religious employer’s affirmative defense
based on the LAD’s religious tenets exception.
Here, because Crisitello offers no evidence that the reason given for her
termination was false, there exists no dispute of material fact and St. Theresa’s
is entitled to judgment as a matter of law. The religious tenets exception of the
LAD precludes recovery here.
Because we decide this matter on the religious tenets exception, we do
not reach the constitutional questions presented.
IV.
We reverse the judgment of the Appellate Division and reinstate the trial
court’s grant of St. Theresa’s motion for summary judgment and dismissal of
the complaint.
CHIEF JUSTICE RABNER, JUSTICE PATTERSON, and JUDGE
HAAS (temporarily assigned) join in JUSTICE SOLOMON’s opinion.
JUSTICE PIERRE-LOUIS filed a concurrence. JUSTICES WAINER APTER
and FASCIALE and JUDGE SABATINO (temporarily assigned) did not
participate.
32
Victoria Crisitello,
Plaintiff-Respondent,
v.
St. Theresa School,
Defendant-Appellant.
JUSTICE PIERRE-LOUIS, concurring.
Today the majority holds that the religious tenets exception to the Law
Against Discrimination (LAD) is an affirmative defense such that once an
entity has established that an adverse employment action falls within that
exception, the framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), does not apply. I disagree with such a broad application
of the exception and instead agree with the Attorney General that the religious
tenets exception is no more than a means for a sectarian employer to satisfy
prong two of the McDonnell Douglas framework.
Applied to this context, the second prong of McDonnell Douglas allows
a religious employer to show that the adverse employment action resulted from
a lawful nondiscriminatory reason -- in other words, because of a religious
tenet. However, a religious employer that has invoked the religious tenets
1
exception, thereby satisfying prong two, is still subject to prong three of the
McDonnell Douglas framework, pursuant to which the plaintiff must show by
a preponderance of the evidence that the employer’s proffered
nondiscriminatory reason is a pretext for discriminatory action.
I agree with the majority that plaintiff Victoria Crisitello’s LAD action
fails, but I depart from the majority’s analysis of treating the LAD’s religious
tenets exception as an affirmative defense such that the McDonnell Douglas
framework does not apply. In my view, plaintiff’s claim fails because the
record does not suggest defendant’s proffered religious tenets are a pretext for
plaintiff’s termination, and therefore, plaintiff has failed to meet her
evidentiary burden at step three of the McDonnell Douglas framework.
Accordingly, I respectfully concur in the decision.
I.
This Court has on many occasions referenced the Legislature’s intent
that the LAD’s “worthy purpose is no less than eradication of ‘the cancer of
discrimination’ in our society.” Richter v. Oakland Bd. of Educ., 246 N.J.
507, 537 (2021) (quoting Smith v. Millville Rescue Squad, 225 N.J. 373, 390
(2016)). To achieve that goal, “the LAD is given liberal construction, for the
‘more broadly [the LAD] is applied, the greater its antidiscriminatory
impact.’” Ibid. (alteration in original) (quoting Smith, 225 N.J. at 390).
2
The plain text and legislative history of the LAD, N.J.S.A. 10:5-1 to -49,
signal that the Legislature did not intend to create a blanket exception for
religious entities to overcome a LAD employment action by merely invoking a
religious tenet that justified its decision. In 1945, when the LAD was first
enacted, religious employers were not included in the statute’s definition of
“employer.” See L. 1945, c. 169. Thus, the LAD’s antidiscrimination
principles did not initially apply to religious employers. In 1977, however, the
Legislature amended the LAD to broaden the definition of “employer” to
include religious entities in order to “remove [the] ‘blanket’ exemption” for
religious employers from the LAD. L. 1977, c. 122; see Statement to S. 1608
(Nov. 8, 1976) (Senate Statement). This amendment likewise created the
religious tenets exception.
A detailed review of the text of N.J.S.A. 10:5-12 is instructive in
interpreting the manner in which the Legislature chose to articulate the
discriminatory actions that fall within the LAD and those that do not. After an
introductory clause that declares “[i]t shall be an unlawful employment
practice, or, as the case may be, an unlawful discrimination,” N.J.S.A. 10:5-12
sets forth a list of practices declared unlawful if based on protected
characteristics such as race, age, sexual orientation, marital status, and
3
pregnancy. The statute then lists exceptions to that general rule. One
exception is the religious tenets exception, which states
it shall not be an unlawful employment practice . . . for
a religious association or organization to utilize
religious affiliation as a uniform qualification in the
employment of clergy, religious teachers or other
employees engaged in the religious activities of the
association or organization, or in following the tenets
of its religion in establishing and utilizing criteria for
employment of an employee . . . .
[N.J.S.A. 10:5-12(a).]
The exception makes otherwise discriminatory actions nondiscriminatory -- if
the entity took the action in “following the tenets of its religion in establishing
and utilizing criteria for employment of an employee.” Ibid. Significantly, in
the Senate Statement accompanying the bill amending the statute, the
Legislature noted that “[a]ny other [prohibited] basis for selection is
unlawful.”1 In other words, if the basis for the apparently discriminatory
1
Defendant St. Theresa School argues, in line with the majority’s holding,
that a proffered religious tenet basis for an adverse employment action is not
“subject to a determination of whether the stated reason for the discharge was
merely pretext for unlawful discrimination.” But defendant further contends
that “any asserted factual dispute in this case is immaterial.” Given the LAD’s
remedial purpose of eradicating discrimination, it is unlikely that the
Legislature intended for religious employers to simply invoke their religious
tenets as the basis for adverse action with no further inquiry into whether the
action was actually motivated by discriminatory intent.
4
employment action is something other than the employer’s religious tenets, the
action falls within the LAD’s prohibitions and is unlawful.
By way of example, if a secular employer takes an adverse employment
action based on an employee’s marital status or pregnancy, that is very clearly
an unlawful employment action under the LAD. If a religious employer,
however, takes the same action, but the employer asserts that the action was
based on following its religious tenets, it is not an unlawful employment action
or unlawful discrimination. In other words, the exception transforms a
discriminatory and unlawful action into nondiscriminatory action by virtue of
the religious tenet undergirding the conduct. This is true unless, of course, the
proffered religious tenet motive is proven to be a pretext for discriminatory
action.
II.
The LAD provides a cause of action for aggrieved employees to file suit
against their employers if they believe their employer committed an adverse
employment action against them based on a protected characteristic. In the
rare employment discrimination case in which a plaintiff presents direct
evidence of an employer’s discriminatory animus, the McDonnell Douglas
framework, elaborated upon below, does not apply. In those cases involving
direct evidence of discrimination, “the employer must . . . produce evidence
5
sufficient to show that it would have made the same decision if illegal bias had
played no role in the employment decision.” Smith, 225 N.J. at 395 (quoting
Fleming v. Corr. Healthcare Sols., Inc., 164 N.J. 90, 100 (2000)).
Routinely, employment discrimination complaints under the LAD are
assessed using the “procedural burden-shifting methodology” set forth in
McDonnell Douglas, which allows a plaintiff to use circumstantial evidence to
establish a claim of discrimination against their employer. Meade v. Township
of Livingston, 249 N.J. 310, 328 (2021) (quoting Zive v. Stanley Roberts, Inc.,
182 N.J. 436, 447 (2005)). Under that framework,
(1) the plaintiff must come forward with sufficient
evidence to constitute a prima facie case of
discrimination; (2) the defendant must then show a
legitimate nondiscriminatory reason for its decision;
and (3) the plaintiff must then be given the opportunity
to show that defendant’s stated reason was merely a
pretext or discriminatory in its application.
[Ibid. (quoting Henry v. Dep’t of Hum. Servs., 204 N.J.
320, 331 (2010)).]
The first prong of McDonnell Douglas requires the plaintiff to state a
prima facie case of discrimination. Ibid. “A plaintiff alleging discriminatory
discharge must show: ‘(1) that plaintiff is in a protected class; (2) that plaintiff
was otherwise qualified and performing the essential functions of the job; (3)
that plaintiff was terminated; and (4) that the employer thereafter sought
similarly qualified individuals for that job.’” Smith, 225 N.J. at 395 (quoting
6
Victor v. State, 203 N.J. 383, 409 (2010)). At this stage, the plaintiff’s
evidentiary burden is “rather modest: it is to demonstrate to the court that
plaintiff’s factual scenario is compatible with discriminatory intent -- i.e., that
discrimination could be a reason for the employer’s action.” Zive, 182 N.J. at
447 (quoting Marzano v. Comput. Sci. Corp. Inc., 91 F.3d 497, 508 (3d Cir.
1996)).
Once a prima facie case of discrimination is established, prong two of
McDonnell Douglas gives the employer an “opportunity to rebut the
presumption of discrimination ‘with admissible evidence of a legitimate, non-
discriminatory reason for its rejection of the employee.’” Smith, 225 N.J. at
395 (quoting Bergen Com. Bank v. Sisler, 157 N.J. 188, 210 (1999)).
“If the employer [succeeds] in rebutting the presumption of
discrimination, the burden shifts back to the plaintiff to establish by a
preponderance of the evidence that the employer’s proffered reason for the
termination was in fact a pretext for discrimination” -- prong three of
McDonnell Douglas. Id. at 395-96 (citing Sisler, 157 N.J. at 211). To prove
that the employer’s reason is pretext, “a plaintiff must do more than simply
show that the employer’s [proffered legitimate, nondiscriminatory] reason was
false; he or she must also demonstrate that the employer was motivated by
discriminatory intent.” Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002).
7
“Employees typically try to establish pretext in one of three ways: (1) by
showing that the employer’s articulated reason had no basis in fact; (2) by
showing that the reason would have been insufficient to motivate the
employer’s action; or (3) by showing that the reason did not actually motivate
that action.” Blount v. Stanley Eng’g Fastening, 55 F.4th 504, 510 (6th Cir.
2022) (quotation omitted).
A series of hypothetical examples is helpful in assessing the bounds of
the McDonnell Douglas framework with respect to LAD claims against both
secular and religious employers. Expanding on the examples above, if a
secular employer admits that it fired an employee because she became
pregnant, that is clearly an unlawful employment action under the LAD. The
McDonnell Douglas framework would not apply because the plaintiff-
employee has direct evidence in the form of an admission that the employer
has violated the LAD in firing her.
However, if a plaintiff does not have direct evidence of discrimination
and claims that her secular employer fired her because of her pregnancy,
McDonnell Douglas does apply and the plaintiff would likely meet the “rather
modest” evidentiary burden under prong one of McDonnell Douglas by
presenting a factual scenario “compatible with discriminatory intent.” Zive,
182 N.J. at 447. Then, if the employer submits that it fired that same
8
employee for poor performance and provides evidence to support that
assertion, the employer would satisfy prong two of McDonnell Douglas by
providing a legitimate, lawful, nondiscriminatory reason for the termination.
Prong three of McDonnell Douglas is then implicated; to survive summary
judgment, the plaintiff must prove by a preponderance of the evidence that the
asserted lawful reason is merely a pretext for a discriminatory motive, that is,
the plaintiff was actually fired because of pregnancy, despite the employer’s
assertions.
The same would be true if a religious employer asserts that it fired an
employee for poor performance -- that is, a legitimate, lawful,
nondiscriminatory employment reason to terminate an employee. But if the
plaintiff alleges that their race was the actual reason for their firing, prong
three of the McDonnell Douglas burden-shifting framework would certainly
allow the plaintiff to present evidence of pretext to establish that the
termination was racially motivated.
The analysis is no different when the religious tenets exception is
invoked. As applicable to this case, if a religious employer asserts that it fired
an employee for her pregnancy, which violates the religious tenets of the
employer’s faith because the employee was unwed and had therefore engaged
in premarital sex, that serves as a religious employer’s legitimate, lawful,
9
nondiscriminatory reason for the termination under the religious tenets
exception. But just as in every other scenario when an employer proffers a
legitimate, nondiscriminatory reason for the adverse employment action, the
plaintiff must then be allowed to prove by a preponderance of the evidence
that the employer’s asserted lawful motive is merely a pretext for a
discriminatory reason. If a plaintiff in such a situation had emails, for
example, in which the employer seemingly expressed displeasure in having a
pregnant woman on staff, apart from the religious tenets basis, that would be
sufficient to show pretext. Such evidence would show that although the
employer asserted the religious tenets of their religion, that was a cover for the
real reason -- discrimination against a pregnant employee.
III.
The majority holds that once a defendant has “pled and proven” the
religious tenets exception, “the McDonnell Douglas burden-shifting analysis is
inapplicable,” and the general summary judgment standard of determining
whether a genuine issue of material fact exists is triggered. Ante at ___ (slip
op. at 25, 26 n.3).2 Our courts, however, have consistently applied the
2
The majority also states that if the religious tenets “affirmative defense is
pled and proven, the employer need not contest the plaintiff’s allegations.”
Ante at ___ (slip op. at 22). That statement seems to be in line with
defendant’s argument that once the religious tenets exception is established,
10
McDonnell Douglas framework “to determine the proofs necessary to establish
[a plaintiff’s] LAD claim and whether summary judgment was appropriately
granted” or denied. Grande v. Saint Clare’s Health Sys., 230 N.J. 1, 23-30
(2017) (assessing the summary judgment standard through the McDonnell
Douglas framework); see also Meade, 249 N.J. at 330-32 (finding summary
judgment improper after analyzing the facts of the case pursuant to the
McDonnell Douglas burden-shifting framework); Henry, 204 N.J. at 332 (“[I]f
the plaintiff cannot meet his or her obligation under the McDonnell Douglas
methodology, the employer will prevail on summary judgment.”); Sisler, 157
N.J. at 208-10, 217-18 (finding summary judgment improper and noting that
“this Court has adopted the McDonnell Douglas approach ‘as a starting point’
in analyzing claims under the LAD”); El-Sioufi v. Saint Peter’s Univ. Hosp.,
382 N.J. Super. 145, 166-75 (App. Div. 2005) (finding summary judgment
appropriate because the plaintiff failed to establish pretext and the evidence
was overwhelming that the adverse employment actions taken against her were
based on legitimate, nondiscriminatory reasons); Jason v. Showboat Hotel &
Casino, 329 N.J. Super. 295, 303-08 (App. Div. 2000) (finding summary
judgment appropriate because the plaintiff failed to carry his burden to show
that ends the inquiry and the case, despite the majority’s holding that a plaintiff
can survive summary judgment if a genuine dispute of material fact exists.
11
that the defendant’s legitimate, nondiscriminatory reason for his termination
was pretextual). The manner in which our trial courts determine whether
summary judgment is appropriate in LAD matters is thus to conduct the
burden-shifting analysis.
The goal of the McDonnell Douglas burden-shifting analysis is to
effectuate the purpose of LAD by allowing courts to assess claims through a
framework that challenges the veracity of the employer’s proffered reason.
See Herx v. Diocese of Fort Wayne-South Bend Inc., 48 F. Supp. 3d 1168,
1180 (N.D. Ind. 2014) (finding that, in the context of the Americans with
Disabilities Act (ADA)’s religious tenets exception, the plaintiff was “entitled
to a chance to show,” under prong three of McDonnell Douglas, that the
employer’s “proffered justification wasn’t its true reason for nonrenewing her
contract -- that her infertility was”). Indeed, at the heart of every LAD claim
is the allegation that the motivation behind an adverse employment action was
discriminatory.
The majority’s conclusion that the religious tenets exception is an
affirmative defense -- similar to other affirmative defenses that end the case
once proven -- is contrary to the Legislature’s decision to subject religious
employers to the LAD’s antidiscrimination principles. And the majority’s
comparison to other statutes’ affirmative defenses in support of this holding is
12
not dispositive because the LAD’s liberal, remedial intent does not lend itself
to comparison to dissimilar statutes. See, e.g., Fuchilla v. Layman, 109 N.J.
319, 332-38 (1988) (holding the notice provisions of the Tort Claims Act
(TCA) did not apply to LAD actions, as the purposes of the two statutes are
different); Victor, 203 N.J. at 410 n.11 (noting that the statutory definitions for
disability under the LAD are “significantly broader than those in the ADA”).
Though the majority is correct that the LAD includes an affirmative
defense in another context, the rental of “real property,” that provision’s
language explicitly expresses the Legislature’s intent to limit the LAD’s
protections to specific rental properties, as opposed to the language contained
in the religious tenets exception which is stated much differently. Compare
N.J.S.A. 10:5-5(n) (“the provisions of this act shall not apply to the rental of
. . .” (emphasis added)), with N.J.S.A. 10:5-12(a) (“it shall not be an unlawful
employment practice . . .” (emphasis added)). It is evident that the language of
N.J.S.A. 10:5-5(n) signals an affirmative defense that once established ends
the case.
In Poff v. Caro, in which a three-family home property owner refused to
rent an apartment due to his discriminatory beliefs against gay men, the Law
Division concluded that N.J.S.A. 10:5-5(n) did not shield the owner from
liability because the statute exempted two-family -- not three-family -- homes
13
from liability under the LAD. 228 N.J. Super. 370, 378-79 (Law Div. 1987).
However, if the property owner did in fact occupy and rent a two-family home,
N.J.S.A. 10:5-5(n)’s affirmative defense would apply and shield the owner
from liability, regardless of any overtly discriminatory animus of the owner.
In other words, even if the tenants in Poff had direct evidence of
discrimination or could prove pretext, they nevertheless could not survive
summary judgment. That is very different from the contours of the majority’s
asserted religious tenets affirmative defense, pursuant to which, if the
employee can prove pretext, the employee could potentially survive summary
judgment due to asserting a genuine dispute of fact.
Furthermore, the other affirmative defenses that the majority cites
operate differently in practice than the articulated religious tenets defense
would. In the TCA example, once the affirmative defense is established that
the defendant is immune from liability based on his status as a public defender,
that is the end of the case, unless there is a genuine issue of material fact
concerning the defendant’s status for immunity. See ante at ___ (slip op. at
22). Similarly, in the statute of limitations example, the majority notes that if
there is a genuine dispute of material fact as to when the action accrued for
purposes of calculating the statute of limitations, summary judgment is
inappropriate. See ante at ___ (slip op. at 23-24). In both of those scenarios,
14
the potential genuine issues of material fact that would preclude summary
judgment relate to the applicability of the affirmative defense in the first
instance -- whether the defendant was a public defender or whether the statute
of limitations date has passed -- not to the merits of the case. That is a very
meaningful distinction between those affirmative defenses and the majority’s
articulated religious tenets affirmative defense.
The majority instructs that if a genuine dispute of material fact exists as
to whether the employer relied solely on its religious tenets in justifying the
adverse action, summary judgment is improper. See ante at ___ (slip op. at
25-26). This necessarily instructs trial courts to analyze the merits of the
plaintiff’s claim to decipher whether the employer’s proffered reason is true,
or a pretext for unlawful discrimination. Because of this, even if the religious
tenets exception is applicable, pled, and proven, a plaintiff can still defeat the
employer’s motion for summary judgment. By contrast, if parties stipulate
that the statute of limitations has passed and therefore that defense applies, the
case is over. As noted, if a property owner refuses to rent an apartment in their
two-family home for discriminatory reasons and raises the affirmative defense
found in N.J.S.A. 10:5-5(n), the case is over. The inquiry into whether an
employer’s proffered reason for an adverse employment action is pretextual is
not the same as the mechanical application of whether an event occurred on a
15
particular date, like in the statute of limitations context, or whether a rental
property is a two-family or three-family home, like in Poff. Such a construct
that searches the merits of the LAD claim is unlike the other affirmative
defense the majority cites.
Additionally, the Court’s holding replaces the McDonnell Douglas
burden-shifting methodology with the general summary judgment standard
when a religious entity has invoked the religious tenets exception. Ante at ___
(slip op. at 25-26). I see no reason for this change. The majority articulates
that when there are “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.” Ante at ___ (slip op. at 26). That is
almost the same inquiry found within prong three of McDonnell Douglas:
shifting the burden back to the plaintiff to establish by a preponderance of the
evidence that the employer’s proffered reason (whether based on a religious
tenet or otherwise) is pretext for discriminatory action. Taking the same
inquiry that our courts have been applying for decades and removing it from
the paradigm of the McDonnell Douglas framework will do nothing but cause
confusion among the trial courts regarding the proper method of analyzing
whether a case under the LAD has been established when the religious tenets
16
defense has been proffered. Doing so departs from our case law which has
clearly established that the proper way to assess summary judgment in LAD
cases involving circumstantial evidence of discrimination is through the
McDonnell Douglas framework.
The Court opines that genuine disputes of material facts will prevent
summary judgment in these LAD cases. In the general summary judgment
context, outside the three-step burden-shifting of McDonnell Douglas, courts
“must accept as true all the evidence which supports the position of the party
defending against the motion and must accord him [or her] the benefit of all
legitimate inferences which can be deduced therefrom.” Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 535 (1995) (alteration in original) (quoting
Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)). A plaintiff’s allegations of
discrimination thus must be viewed in the light most favorable to her and the
court must draw all reasonable inferences in her favor. Id. at 540; Winberry
Realty P’ship v. Borough of Rutherford, 247 N.J. 165, 176 (2021).
By circumventing the McDonnell Douglas framework, the Court has
seemingly created a lesser burden for plaintiffs to sustain a discrimination
claim against their religious employers. That is, plaintiffs who were once
subject to the preponderance of the evidence standard under prong three of
McDonnell Douglas are now able to sustain their claim if they raise a genuine
17
issue of material fact as to whether their employer relied solely on its religious
tenets in commencing the adverse employment action, an inquiry viewed in the
light most favorable to the plaintiff. If a plaintiff has any credible evidence
that their religious employer did not solely rely on its religious tenets, now
summary judgment would seemingly be improper. Conversely, prong three of
McDonnell Douglas instructs that such limited proof is not enough to sustain a
LAD claim; to prove pretext, a plaintiff “must also demonstrate that the
employer was motivated by discriminatory intent.” Viscik, 173 N.J. at 14.
In light of the Court’s holding, there is no clear framework for trial
courts to examine whether the religious tenets basis for the adverse
employment action was pretextual. My concern, going forward, is that taking
this LAD inquiry outside the well-established burden-shifting methodology
and treating the religious tenets exception as an affirmative defense similar to
a statute of limitations is contrary to the Legislature’s intent and will have the
unintended result of needlessly confusing trial courts, or worse, dismissing
worthy claims in which evidence of pretext exists. There is no principled
reason for restructuring the manner in which LAD claims are assessed after
decades of this type of analysis pursuant to McDonnell Douglas for this one
class of employers.
18
IV.
Applying the McDonnell Douglas framework to this case, plaintiff must
first establish a prima facie case of discriminatory discharge. Plaintiff’s
burden at this stage is “rather modest” -- she merely needs to show that
“discrimination could be a reason for the employer’s action.” Zive, 182 N.J. at
447 (quoting Marzano, 91 F.3d at 508). It is not disputed that (1) plaintiff’s
pregnancy places her in a protected class, (2) that she was otherwise qualified
and performing the essential functions of the job, (3) that she was terminat ed,
and (4) that after her termination, defendant sought similarly qualified
individuals for that job. See Victor, 203 N.J. at 409. Plaintiff’s claim that
defendant fired her after she disclosed that she was pregnant sufficiently
alleges that discrimination could have been a reason for the termination.
Turning to prong two, defendant has carried its burden and proffered a
legitimate, lawful, nondiscriminatory reason for plaintiff’s termination by
invoking the religious tenets as a reason for the adverse action. Even plaintiff
conceded that she was aware that premarital sex violated the tenets of the
Catholic Church.
The main dispute in this case centers around prong three -- whether
plaintiff has carried her burden of showing that defendant’s asserted religious
tenet is merely a pretext for discrimination. Plaintiff does not present any
19
evidence that she was discriminated against, or fired, for being pregnant
unrelated to defendant’s proffered religious tenets. Plaintiff similarly provides
no evidence that defendant’s proffered reason for her termination is false.
Additionally, the evidence does not suggest disparate treatment; to the
contrary, the firing of a male employee at another school within the
Archdiocese of Newark for the same reason -- premarital sex, which resulted
in a child out of wedlock -- shows that the Archdiocese at large is relying on
their religious tenets to make these decisions.
In past cases in which our courts found sufficient evidence of unlawful
pretext to withstand summary judgment, those plaintiffs put forth more
evidence to carry their burden. See Meade, 249 N.J. at 331 (where the plaintiff
submitted evidence of gender-based comments from councilmembers who
voted to terminate her, including comments that a male subordinate took issue
with reporting to a woman and that “Michele [Meade] would not be having this
problem if her name was Michael”); DeWees v. RCN Corp., 380 N.J. Super.
511, 529-31 (App. Div. 2005) (where the plaintiff submitted evidence of (1)
reassignments of poor-performing younger men within the company instead of
terminations, (2) hostile interactions with her male supervisor, (3) sexist
comments made by the company’s male president, and (4) her employer’s
20
attempts to reduce her bonus and change her stock option terms without
considering similar actions for male executives).
Based on the evidence in the record, plaintiff has failed to establish, by a
preponderance of the evidence, pretext for the adverse action in this case.
Therefore, I believe that plaintiff’s LAD action fails under prong three of
McDonnell Douglas, and therefore summary judgment is appropriate for
defendant.
V.
For those reasons, I respectfully concur.
21