The New Jersey Law Against Discrimination (the “LAD”) makes it unlawful for employers to terminate employees due to their membership in certain protected classes such as race, age, and sex. But does the LAD make any exceptions to this rule?
The answer is “yes”, but the exceptions are narrow and not often met:
1) An employer may lawfully refuse to employ a person who has just received a notice of induction or orders to report for duty in the armed forces;
2) An employer may lawfully refuse to employ a person on the basis of their sex due to a “bona fide occupational qualification.” Courts rarely recognize these circumstances, but they may include the employer’s artistic considerations (for example, a theater company requiring a certain part to be cast male or female);
3) If the employer is a fraternal or social club, it may use club membership as a uniform qualification for employment; and
4) An employer may require the retirement of certain bona fide executive or policy-making employees, as long as such employees are entitled to annual retirement benefits that meet specific thresholds.
“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. Stat. § 10:5-12(a)
The first part of this exception is straightforward enough. A synagogue, for example, is allowed to require its assistant rabbi to practice Judaism, just like a Presbyterian church is allowed to require its youth pastor to be Presbyterian. (Note, however, that these exceptions are narrowly tailored to jobs that require participation in the religious activities of the organization. In other words, a church employer probably could not require its groundskeeper to be a member.)
But what does it mean for an employee to “follow the tenets” of a religious organization? And what if those tenets unavoidably involve the plaintiff’s membership in a protected class? Does the exemption still apply?
It’s a fact-specific, contentious issue that continues to be litigated. However, in 2023, the New Jersey Supreme Court held that the “religious tenets” exemption allowed a school to terminate an employee because her unwed pregnancy violated the school’s faith-based code of conduct.
Victoria Crisitello v. St. Theresa School
In Crisitello, the plaintiff, a single female, worked for a Catholic school as a caregiver for toddlers and an art teacher for elementary students. Upon her hiring, the school issued her the Policies on Professional and Ministerial Conduct of the Archdiocese of Newark. The Policies included a Code of Ethics which required employees to “conduct themselves in a manner that is consistent with the discipline, norms and teachings of the Catholic Church.” The plaintiff signed an acknowledgment form confirming that she had received and read the Policies, including the Code of Ethics, and agreed to abide by them.
Subsequently, the plaintiff volunteered to her supervisor that she was pregnant. The school then terminated her, informing her that she had violated the Code of Ethics by engaging in premarital sex. The school replaced the plaintiff with a married woman with children.
The plaintiff sued the school under the LAD, claiming she was terminated due to her pregnancy and marital status – two classes protected from discrimination by the law. While the trial court entered summary judgment in the school’s favor, the appellate court reversed and the case was taken up to the New Jersey Supreme Court.
The Court found in the school’s favor, holding that
1) The “religious tenets” exception of the LAD was an affirmative defense the school was entitled to use against the plaintiff’s claims, and
2) The uncontroverted evidence made plain that the school was simply following the tenets of the Catholic Church in terminating the plaintiff, as opposed to terminating her for being pregnant and unmarried per se.
In reaching it’s conclusion, the Court relied on the following evidence:
- The Policies and Code of Ethics that were issued to the plaintiff, and which she signed to acknowledge she would abide by;
- A Deacon’s certification that one of the tenets of Catholicism is that sex outside of marriage is forbidden;
- The fact that the school’s stated reason for terminating the plaintiff was restricted to her violation of the Policies and Code – i.e., for having sex before marriage. The plaintiff could not provide any evidence that the school fired her for the bare fact of being single and pregnant – in other words, that the school’s stated reason for firing her was a pretext for discrimination.
The inability to show pretext will sink any discrimination claim. It’s worth noting that the trial court in Crisitello observed the plaintiff couldn’t proffer any evidence that she was treated disparately than any other Catholic school employee. All other pregnant women employed by the school were married. Moreover, another school within the same Archdiocese had fired an unmarried male employee after learning he had impregnated his girlfriend. Clearly, the plaintiff and all single employees were subject to the same prohibition against premarital sex.
Religious exemptions to the LAD are uncommon and may present complicated legal challenges. If you would like to discuss the issue further, call my offices today for a free consultation.
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