Key Takeaways:

• The New Jersey Supreme Court recently ruled that the Law Against Discrimination (LAD) contained an express exception for religious organizations that make employment decisions based on employment criteria adopted pursuant to the tenets of its religion.

• Religious organizations should ensure that employees acknowledge receipt of documents which set forth the basic tenets of the religion and agree to abide by them.

• While this is certainly a win for religious organizations, the New Jersey Supreme Court kept the basis of its ruling very narrow, relying solely on an express exception in the statute, declining to address the impact of the First Amendment and/or Ministerial Exception on the LAD.

On August 14, 2023, the New Jersey Supreme Court issued its opinion in Victoria Crisitello v. St. Theresa School. This matter, initially filed in 2014, had already twice been in front of the New Jersey Appellate Division. The allegations were relatively straightforward. Crisitello worked for St. Theresa School, a Catholic school within the Archdiocese of Newark, as a caregiver in the toddler room and an art teacher for elementary school students. At the start of her employment, she acknowledged receipt of the Policies on Professional and Ministerial Conduct adopted by the Archdiocese of Newark and agreed to abide them, including the Archdiocesan Code of Ethics. In 2014, the school’s principal learned that Crisitello was pregnant and unmarried. As this violated the tenets of the Catholic Church (specifically, the Code of Ethics and Archdiocesan Policies), the school terminated her employment. She sued, asserting pregnancy discrimination and marital status discrimination under the LAD.

Ultimately, the case made it to the New Jersey Supreme Court, which concluded that the LAD’s plain language required dismissal of Crisitello’s entire complaint. While the LAD does prohibit pregnancy and marital status discrimination in employment, it states: “[I]t 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.” The court characterized this as an affirmative defense to a LAD claim, and explained that, in order to take advantage of this defense, the religious organization 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 decision relied solely on the religious tenets of the employer, then the affirmative defense stands as an absolute bar to liability.” In other words, the religious organization must demonstrate that it only relied on employment criteria adopted pursuant to the tenets of its religion in making the at-issue employment decision. If the religious organization is able to do so, it is entitled to dismissal of the employee’s claim. However, because the New Jersey Supreme Court found this statutory interpretation to be sufficient grounds to resolve the dispute, it expressly declined to address the impact of the First Amendment on LAD claims.

While this is certainly a big win for religious organizations in New Jersey, a few words of caution are needed. First, because the New Jersey Supreme Court based its ruling solely on an express exception in the LAD, the New Jersey Legislature can seek to amend the LAD. Accordingly, this ruling may have limited impact. Second, this ruling has no bearing on claims filed under the LAD’s federal equivalents (e.g., Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, etc.), as those laws do not contain a similar express exception for religious organizations. This means religious organizations can still be sued under these laws. However, these laws have a shorter statute of limitations (300 days), and require the employee to first file a charge of discrimination with the Equal Employment Opportunity Commission. Additionally, the United States Supreme Court has ruled definitively that, at the very least, these laws do not apply to ministers because of First Amendment religious freedom considerations. Who is considered a “minister” is an open question, but the definition appears to be expanding based on recent United States Supreme Court jurisprudence. The New Jersey Supreme Court has not ruled on this issue as it pertains to the LAD. Finally, it is unclear what impact this ruling will have, if any, on claims of harassment based on a protected trait, which is also prohibited by the LAD.

For now, religious organizations should put into place written policies setting forth their employment criteria adopted pursuant to the tenets of their religion, and ensure all employees acknowledge receipt of those policies in writing and agree to abide by them in writing, if they do not already do so. They should also take care to enforce equally any employment criteria they develop. If you have any questions about this development or how it impacts your organization, please contact:

• Jeremy S. Cole
• Caroline J. Berdzik
• Angela A. Cronk
• Conor R. Wiggins
• Or any other member of the Employment and Labor team