If you run a religious organization, can you fire an employee that you believe has not followed your organization’s religious tenets? Suppose your organization is under Roman Catholic auspices and you believe that one of your employees has had sex outside of marriage? Wait. Aren’t religious organizations allowed to do that? Didn’t the US Supreme Court say as much in a relatively recent ruling? What’s that called, again? The ministerial exception? Well, yes, there is a ministerial exception, that sometimes allows a religious organization to discipline or terminate an employee who does not conform to religious tenets, but the issue is more nuanced than that. So the short answer is “Not always”, or “Often, no, you can’t fire that employee”. Let’s look a little further… If you read my blog regularly, then you won’t be surprised that I have a real, live case in mind. This one is in NJ, my neck of the woods. The case is Crisitello v St. Theresa School. Here, in a nutshell, is what’s gone down, so far:
Victoria Crisitello was an art teacher for students in kindergarten through eighth grade at St. Theresa School, which was part of St. Theresa Roman Catholic Church. She never taught any classes about religion, and never acted as a member of the clergy or a minister. The school required all of its “lay faithful” teachers to comply with a code of conduct that was not “contrary to the discipline and teachings of the Catholic Church[,] and/or which may result in scandal . . . or harm to the ministry of the Catholic Church.” The school’s Employee Handbook required teachers to practice a “value-centered approach to living and learning in their private and professional lives.”
In 2014, in a conversation with Sister Theresa Lee, the school’s principal, Ms. Crisitell advised Sister Lee that she was pregnant, Sister Theresa Lee fired her a few weeks later for engaging in premarital sex, replacing her with a married woman with children. Neither the Employee Handbook nor any other code of conduct specifically prohibits premarital sex. It was undisputed that the school never checked to see if any other employees violated Catholic tenets or the employee handbook. The school apparently relied only upon knowledge of its female employees’ pregnancy and marital status as a basis to enforce its code of ethics and handbook requirements—neither of which expressly addressed premarital sex as prohibited conduct, but of which the former prohibited engaging in “immoral conduct” that could cause “scandal.”
Ms. Crisitello, filed suit under the New Jersey Law Against Discrimination (NJLAD), specifically alleging sex discrimination, pregnancy discrimination, and discrimination based on marital status. The trial court granted summary judgment to the school. Ms. Crisitell appealed. The Appellate Division reversed and remanded, directing the trial court to determine whether the school’s stated reason for termination, violation of policies, was pretextual, particularly to consider evidence, if any of how the school treated other similarly situated employees who violated the school’s ethics code. Notwithstanding the fact that the school admitted it had no evidence to show that it behaved consistently with respect to other (possible) policy violations, the school again moved for summary judgment, and the trial court again granted the motion. Ms. Crisitello again appealed, and the Appellate Division again reversed. The school has now appealed, and the NJ Supreme Court has agreed to hear the appeal.
OK, enough of the long-winded history. Doesn’t a religious school have a right to fire a teacher that doesn’t abide by its religious tenets? The general rule is yes. The problem is, as I said in the beginning, the discussion is very nuanced. This teacher was in a protected class. She was unmarried (marital status is protected under the NJLAD) and she was pregnant. She was qualified for her position. She was replaced by a similarly situated married teacher, which triggered an inference of discrimination. The court noted that mere observation of an employee’s pregnancy was not enough to detect violations of school policies. Specifically, the court noted the lack of evidence as to “how male or not pregnant female teachers at defendant’s school who engaged in premarital sex were detected or treated by defendant.” The court found sufficient evidence that could lead a reasonable jury to conclude that Ms. Crisitello was fired for discriminatory reasons, and not for violating school policies. The evidence showed that the school made no effort whatsoever to determine whether any male teachers or non-pregnant female teachers violated any provisions of the Code of Ethics, giving rise to a claim of discrimination based on pregnancy and marital status.
OK, what about the relatively recent US Supreme Court ruling about the ministerial exception? That case, Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U. S. ___, ___, 140 S. Ct. 2049 (2020), involved teachers at 2 schools that taught both religious and secular subjects and “abundant record evidence that they both performed religious duties”. The court, in this case, noted an absence of any evidence that this teacher performed any religious duties. The court also rejected the school’s argument that an agreement to refrain from “immoral conduct” converted Ms. Crisitello from a lay teacher to a minister, holding that expecting faculty to be “exemplars of practicing Christians does not . . . make the terms and conditions of their employment matters of church administration and thus purely of ecclesiastical concern.'”
So, with all that, what can the rest of us take from this case? Here are a few starting points:
- Be consistent in how you enforce your policies, regardless of what type of policies. Check for similar situations in the past, and make sure that the discipline you are contemplating now is consistent with what you did in the past.
- If you are deviating from past practices, make sure you have a sound reason for doing so — and document it clearly.
- If you are a religious organization, don’t be so quick to hide behind the First Amendment or the ministerial exception. If your employees are not performing religious duties, that exception probably doesn’t apply.
- Speak with either your HR Department or your friendly, local employment counsel before you terminate or otherwise discipline an employee. You may find, as this employer did, that adverse action based on a policy violation could still trigger allegations under federal or state anti-discrimination laws.
All right, we’ll wrap up this discussion, for now.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ