On May 18, 2021 the Supreme Court of New Jersey agreed to hear a Catholic school teacher’s gender bias suit.  The case, Crisitello v. St. Theresa School, has circulated multiple times amongst the lower courts, and now the Supreme Court of New Jersey will determine whether Petitioner, Crisitello, was terminated in violation of the New Jersey Law Against Discrimination based on her pregnancy and marital status.

Crisitello was hired by the private Catholic school in 2011 as a teacher’s aide and later as an art teacher.  She acknowledged in writing that she had received, read, and understood the Ministerial Policies and Code of Ethics requiring personnel to act “consistent with the disciplines, norms and teachings of the Catholic Church.”  In 2014, Crisitello and the principal, Lee, had a discussion about Crisitello assuming additional job duties, in which Crisitello informed Lee that she was pregnant and demanded a pay raise if her job duties were to increase.  She also shared with co-workers that she was engaged to be married.  Shortly after, Crisitello was terminated for engaging in premarital sex in violation of Catholic tenets and replaced by a woman who was married with children.

Initially, the Appellate Division found that Crisitello had established a prima facie case for unlawful discrimination based on marital status and pregnancy.  However, the Appellate Division sent the case back to the trial court so that Crisitello could have discovery on the issue of the school’s treatment of all “similarly situated” employees who the school knew were in violation of its ethic code.

The trial court was required to consider other employees who were either disciplined or terminated for violating the school’s policies, specifically engaging in premarital sex.  During the school year in which Crisitello was terminated, three other women were pregnant yet married, thus to the school’s knowledge they had not acted inconsistent with the Catholic teaching.  The school had no records of a similarly situated employee, therefore no facts would lead a jury to find that the school unlawfully discriminated against Crisitello.

Once more on appeal, the Appellate Division concluded that the school’s asserted reason for firing Crisitello was merely pretext because the school was enforcing its premarital sex policy in a discriminatory manner.  The Appellate Division reasoned that if no evidence exists that men are also terminated for engaging in premarital sex, then a religious school violates the Law Against Discrimination if the school enforces its policy against premarital sex by only disciplining women whose violations are solely disclosed by pregnancy.

In its petition for review to the Supreme Court of New Jersey, the school notes that while this particular school had no male employees, a male teacher at a sister school under the same ethics code within the Archdiocese was terminated after he disclosed that his unmarried girlfriend was pregnant.  Further, the school seeks to rely upon the United States Supreme Court’s recent decision in Our Lady of Guadalupe School v. Morrissey-Berru, in which the religious school did not have to follow federal employment discrimination laws.  In that case, the Court found the ministerial exception to the First Amendment applied not only to clerical positions, but to teachers with religious duties, and precluded civil courts from adjudicating discrimination claims by two Catholic school teachers against their employers.  The school contends that the case should be dismissed because Crisitello was hired as a Christian Witness and obligated to integrate the Catholic faith in her art classroom.

The Supreme Court of New Jersey will address this thorny area, as case law in the area of employer religious freedoms develops further following the Court’s decision in Our Lady of Guadalupe School.  Although it remains to be seen who will prevail, we are likely to see more religious freedom arguments from employers in the future, at least until the Supreme Court weighs in once more.