Victoria Crisitello v. St. Theresa School 085213)

• Court: Supreme Court of New Jersey
• Decided: August 14, 2023
• Docket: A-63-20
• Status: Published

Opinion

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.

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.

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.

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.

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,

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.

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.

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.

For those reasons, I respectfully concur.