Crisitello v. St. Theresa School, 465 N.J. Super. 223 (App. Div. 2020). This decision under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”), was the second time that this case came before the Appellate Division. The issue in today’s opinion was “whether a parochial school’s knowledge of the pregnancy of an unmarried lay teacher, who started as a teacher’s aide for toddlers, later taught art, and had no responsibility for religious instruction, can serve as the nondiscriminatory basis for the teacher’s termination for violating the school’s morals code, where the school never made any effort to determine whether any of its other employees have violated the school’s prohibition against ‘immoral conduct’ that is allegedly incorporated into each employees’ [sic] terms of employment.”
As Judge Rothstadt’s opinion observed, the prior, unpublished opinion had “determined that the First Amendment to the United States Constitution did not bar plaintiff’s action, and that plaintiff established a prima facie claim of discrimination under the first step in the McDonnell Douglas [Corp v. Green, 411 U.S. 792 (1973)] analysis.” That ruling had reversed a summary judgment in favor of defendant.
The prior opinion remanded the case for discovery on “the issue of defendant’s treatment of all ‘similarly situated’ employees who defendant knew were in violation of its ethics code.” This was done because “[a]bsent evidence that men are treated the same way as women who are terminated for engaging in premarital sex, a religious institution violates [the] LAD if the institution terminates a woman for engaging in premarital sex based solely on knowledge of her pregnancy.”
Once that discovery was completed, defendant again sought and was granted summary judgment. Plaintiff appealed, and the Appellate Division again reversed.
Judge Rothstadt explained the basis for that result. “[I]t was undisputed that defendant took no actions to detect whether any of its employees violated Catholic tenets or breached defendant’s employee handbook. Instead, the evidence established that defendant 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 a prohibited conduct, but of which the former prohibited engaging in ‘immoral conduct’ that could cause ‘scandal.'” There were no issues as to plaintiff’s job performance. Applying de novo review, the panel concluded that, viewing the facts most favorably to plaintiff, as required in the summary judgment context, “a reasonable trier of fact could conclude that [plaintiff’s] termination violated the LAD.”
The second and third McDonnell Douglas steps are that the defendant must “produce a legitimate, nondiscriminatory reason for the adverse employment action” and that the plaintiff must then prove that that reason was “a pretext for discrimination.” Judge Rothstadt said that “[w]hen premarital sex is used as the reason for termination, courts have held that an employer enforcing such a policy unevenly … by observing or having knowledge of a woman’s pregnancy– is evidence of pretext.” Since there was evidence that that was the case here, plaintiff had carried her burden on the third McDonnell Douglas step. Accordingly, she won a reversal of summary judgment.