Churches May Fire an Employee for Violating Moral Standards If Done Consistently

Key Point 8-12.4 . Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. The Act permits religious organizations to discriminate in employment decisions on the basis of religion. This exemption permits such organizations to discriminate on the basis of moral or scriptural standards so long as they do so consistently and not in a way that adversely impacts employees who are members of a group that is protected under an applicable state or federal discrimination law.

A New Jersey court ruled that churches are free to dismiss employees for violating the church’s moral standards so long as they do so consistently and, for example, do not treat male employees who engage in extramarital sexual conduct more leniently than pregnant, unmarried female employees.

A school owned and operated by a Catholic church adopted the religious policies on professional and ministerial conduct espoused by the Archdiocese, including a code of ethics. That code states: “Church personnel shall exhibit the highest Christian ethical standards and personal integrity,” and “shall conduct themselves in a manner that is consistent with the discipline, norms and the teachings of the Catholic Church.” The policies further preclude immoral conduct by employees, which is defined as “conduct that is contrary to the discipline and teachings of the Catholic Church, and which may result in scandal . . . or harm to the ministry of the Catholic Church.” They apply to clergy members and the “lay faithful,” which are defined as all “paid personnel whether employed in areas of ministry or other kinds of services.” The school’s faculty handbook also contains numerous provisions aligning with the church’s tenets, including a section labeled “Christian Witness,” which required teachers to practice a “value-centered approach to living and learning in their private and professional lives.”

None of the policies or provisions of the handbook expressly identified premarital sex as prohibited conduct. According to the school’s principal, there was no specific statement in any document that “would inform someone that if they became pregnant while being unmarried that they would be violating an official policy.” There was also no statement in the documents that a violation of any provision would result in immediate termination from employment. The only specifically identified prohibited behavior was contained in the church’s code of ethics, which included a chapter titled “Prevention of Immoral Conduct: Guidelines for Ethical Behavior.” Under that chapter, in a section titled “Standards for the Archdiocese as to Prevention of Immoral Conduct,” specific prohibited conduct was defined as:

a. Immoral conduct.

b. Procurement or participation in the procurement of abortion, or committing homicide or euthanasia.

c. Possession or distribution of pornographic material.

d. Adultery, flagrant promiscuity or illicit co-habitation.

e. Abuse of alcohol, drugs, or gambling.

f. Theft, fraud, or any other form of misappropriation or misuse of Church funds or property.

g. Sexual exploitation or abuse.

h. Physical assault and fighting.

i. Conduct which is illegal under the laws of our country, state or local government.

In September 2011, the school hired a lay teacher for toddlers (the plaintiff). The plaintiff signed an acknowledgement that she understood and agreed with the school’s ethics code and faculty employment handbook. She was already familiar with the church’s teachings, including its prohibition against premarital sex. In 2014, during a meeting with the school principal, the plaintiff stated that she was pregnant, and if she were given additional work, she would like to be paid more than her current salary.

The principal subsequently told the plaintiff to either resign or she would be terminated because she was pregnant and unmarried. The principal later explained:

Plaintiff was terminated . . . after I became aware that she was carrying a child in an unmarried state, which necessarily meant that she had engaged in sex outside of marriage. Sex outside of marriage is not permitted in the Catholic Church. Sex outside of marriage violates the tenets of the Catholic Church. Thus, plaintiff violated her obligations under the policies, including the code of ethics. She has not exhibited the highest Christian ethical standards and personal integrity, which were required of her. Furthermore, she has not conducted herself in a manner that is consistent with the discipline, norms and teachings of the Roman Catholic Church.

The principal stressed that the school “has nothing against pregnant teachers” as long as they were “married at the time of being with child.”

The plaintiff sued the school, alleging that its articulated reason for terminating her employment was a mere pretext for discrimination on the basis of her pregnancy and marital status of being “unmarried.” The trial court dismissed the plaintiff’s claims on the ground that they were barred by the First Amendment guaranty of religious freedom. The plaintiff appealed.

A state appeals court began its opinion by noting that civil courts cannot decide purely religious issues, and that “we also acknowledge a Catholic school’s right to terminate a teacher who has publicly engaged in conduct regarded by the school as inconsistent with its religious principles.” However, the limitation on a civil court’s involvement in religious disputes over doctrine or conduct “does not apply to civil adjudication of purely secular legal questions that do not entail theological or doctrinal valuations, even if they involve some background issues of religious doctrine. . . . Religious organizations are not entitled to a blanket exemption from all secular regulations because of their status as a religious institution.”

The plaintiff claimed that she was a victim of sex and marital status discrimination because male teachers who engaged in extramarital sexual relations were not dismissed. The court concluded that such a claim, if proven, could be resolved by the civil courts because it would not involve any inquiry into church doctrine or teachings. The court sent the case back to the trial court for further consideration.

What this means for churches

This case demonstrates that the dismissal of an employee for violating a church’s moral teachings may expose a church to liability. There are steps that a church can take to mitigate this risk. Before dismissing an employee for violating the church’s moral teachings, church leaders should ask the following questions:

1. Is there sufficient evidence to support our decision?
2. Did we inform the employee, in an employee handbook or other document that he or she would be subject to dismissal for engaging in behavior in violation of our moral teachings?
3. How will we describe the basis for our decision? The best description will refer to the church’s doctrinal tenets and scriptural citations. Stay away from words such as “pregnancy” that can have a “secular” meaning, and that diminish the “religious exemption” available to churches under most federal and state civil rights and employment laws.
4. How have we treated other employees in the past who were guilty of the same kind of misconduct? Have we treated all employees equally? Or, have we treated some employees less favorably than others? For example, have we dismissed female employees who were guilty of extramarital sexual relations but only warned or reprimanded male employees guilty of the same behavior? Before dismissing an employee for misconduct, church leaders should review all other known cases involving similar misconduct by other employees. Be sure that an employee who is protected against discrimination by state or federal law is not treated less favorably than other employees in previous cases.
5. Have we consulted with an attorney before taking final action?

Crisitello v. St. Theresa School, 2018 WL 3542871 (N.J. App. 2018).