
    [638 NE2d 977, 615 NYS2d 332]
    Donald Z. Scheiber, Appellant, v St. John’s University, Respondent.
    Argued May 4, 1994;
    decided June 21, 1994
    
      POINTS OF COUNSEL
    
      Jessel Rothman, P. C., Mineóla (Jessel Rothman, Steven D.
    
    
      Baum and Allen J. Rothman of counsel) for appellant.
    I. Respondent University, an equal opportunity employer, is estopped from claiming that it has the statutory right (Executive Law § 296 [11]) to discriminate against Jews. (Federation of Labor v McAdory, 325 US 450; Rosenberg v Fleuti, 374 US 449; Peters v Hobby, 349 US 332; Holme v C.M.P. Sheet Metal, 89 AD2d 229; Baron v Lombard, 71 AD2d 823, 50 NY2d 896; Robinson v City of New York, 24 AD2d 260; Matter of City of New York v New York State Dept, of Envtl. Conservation, 89 AD2d 274; United States v Bedford Assocs., 491 F Supp 851; Matter of Huntington TV Cable Corp. v State of New York Commn. on Cable Tel., 94 AD2d 816, 61 NY2d 926; Amrep Corp. v American Home Assur. Co., 81 AD2d 325.) II. Defendont violated New York State Executive Law § 296 (1) and section 703 of the Civil Rights Act of 1964, as amended (42 USC § 2000e-2 [a]), by discharging plaintiff because he is Jewish. (Matter of State Div. of Human Rights v Gorton, 32 AD2d 933, 25 NY2d 680; Matter of American Jewish Congress v Carter, 23 Misc 2d 446, 9 NY2d 223.) III. Executive Law § 296 (11) was never intended by the Legislature to allow the University to discriminate against and discharge Donald Scheiber on the basis he is a Jew. (North Shore Univ. Hosp. v State Human Rights Appeal Bd., 82 AD2d 799; Matter of Watson, 171 NY 256; Matter of Basilio Scientific Spiritist Cult Assn., 9 Misc 2d 389; Matter of Lueken [Our Lady of Roses], 97 Misc 2d 201; Selkir v Klein, 50 Misc 194; Matter of Taylor v Day Star Baptist Church, 196 Misc 449; Pime v Loyola Univ. of Chicago, 585 F Supp 435, 803 F2d 351.) IV. Applying section 296 (11) to the University’s discriminating activities violates equal protection principles. (Larson v Valente, 456 US 228; King’s Garden v Federal Communications Commn., 498 F2d 55; Larkin v Grendel’s Den, 459 US 116; Widmar v Vincent, 454 US 263; Dorsey v Stuyvesant Town Corp., 299 NY 512, 339 US 981; Takahashi v Fish & Game Commn., 334 US 410; Truax v Corrigan, 257 US 312; Buchanan v Warley, 245 US 60; Kentucky v Powers, 201 US 1; Civil Rights Cases, 109 US 3.) V. Section 296 (11) of the Executive Law violates the Establishment Clause. (Gillette v United States, 401 US 437; Walz v Tax Commn., 397 US 664; Grand Rapids School Dist. v Ball, 473 US 373; Bob Jones Univ. v United States, 461 US 574; Federation of Labor v McAdory, 325 US 450; Screws v United States, 325 US 91; National Labor Relations Bd. v Catholic Bishop of Chicago, 440 US 490.) VI. Plaintiff pleaded a proper cause of action for abusive discharge on the ground of unlawful discrimination. (Chin v American Tel. & Tel. Co., 96 Misc 2d 1070, 70 AD2d 791, 48 NY2d 603.) VII. The complaint properly set forth a completely separate and distinct valid cause of action for prima facie tort. (Morrison v National Broadcasting Co., 24 AD2d 284, 19 NY2d 453; Fisher v Queens Park Realty Corp., 41 AD2d 547; Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397; Fox v Issler, 77 AD2d 860; Halperin v Salvan, 117 AD2d 544.)
    
      Herbert D. Schwartzman, Jamaica, and James F. Niehoff for respondent. I.
    The protections afforded by section 296 (11) of the Executive Law are applicable to St. John’s University. (Matter of Herzog v Joy, 74 AD2d 372, 53 NY2d 821; Matter of 
      
      Carr v St. John’s Univ., 17 AD2d 632, 12 NY2d 802.) II. Once the Legislature declared that "nothing contained in this section” shall prohibit religiously motivated employment decisions by religious organizations, general policy statements by the University cannot expand the statute’s scope. (Estro Chem. Co. v Falk, 303 NY 83; Brooklyn Bank v O’Neil, 324 US 697; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350; Matter of Klein [Hartnett], 78 NY2d 662; Murphy v American Home Prods. Corp., 58 NY2d 293; Sabetay v Sterling Drug, 69 NY2d 329; Finger Lakes Racing Assn, v New York State Racing & Wagering Bd., 45 NY2d 471.) III. The protections afforded to St. John’s University by section 296 (11) do not violate the Constitutions or laws of the United States or of the State of New York. Such protection is in furtherance of St. John’s free exercise of religion. (Matter of Klein [Hartnett] 78 NY2d 662; Elmwood-Utica Houses v Buffalo Sewer Auth., 65 NY2d 489; Maresca v Cuomo, 64 NY2d 242; Abington School Dist. v Schempp, 374 US 203; Walz v Tax Commn., 397 US 664; Corporation of Presiding Bishop v Amos, 483 US 327; Under 21 v City of New York, 65 NY2d 344; Bob Jones University v United States, 461 US 574; Love v Pullman Co., 404 US 522; Alexander v Gardner-Denver Co., 415 US 36.) IV. Appellant has failed to establish a cause of action in tort for intentional infliction of emotional distress, prima facie tort or abusive discharge. (Murphy v American Home Prods. Corp., 58 NY2d 293; Ingle v Glamore Motor Sales, 73 NY2d 183; Sabetay v Sterling Drug, 69 NY2d 329; Leibowitz v Bank Leumi Trust Co., 152 AD2d 169; Howell v New York Post Co., 81 NY2d 115.)
   OPINION OF THE COURT

Chief Judge Kaye.

Donald Scheiber, Vice-President of Student Life at St. John’s University (SJU), was fired from his position after 20 years of service. He commenced this action alleging, in part, that SJU terminated him because of his religious beliefs, in violation of State and Federal antidiscrimination laws, and contrary to SJU’s public assertions that it was an "equal opportunity employer.”

Plaintiff asserted that complaints about his job performance, and the announcement by SJU’s new President that he would prefer members of the Congregation of the Mission (Vincentians) as Vice-Presidents were pretextual, aimed at driving him out of the University because he was Jewish. Plaintiff contended that, as SJU’s only Jewish Vice-President, he was singled out for increased scrutiny by the new administration. SJU denied engaging in discrimination against plaintiff, insisting that he was terminated because of poor job performance. As an affirmative defense SJU claimed that, even assuming the truth of plaintiff’s allegations, its preference for a Roman Catholic would be constitutionally protected as free exercise of religion.

According to University publications, SJU was incorporated under New York’s Membership Corporations Law in 1871 by the Vincentian Fathers, founded in 1625 by St. Vincent de Paul. The order sponsors St. John’s, Niagara and De Paul Universities, as well as high schools, seminaries, parishes and mission centers. At its groundbreaking in 1868, SJU was described as a "college for the education of youth without distinction of religious belief, political opinion, or social condition,” with the objective of offering "men and women, in a Catholic atmosphere, the opportunity to achieve for themselves a higher education in the liberal arts and sciences and to prepare for certain professions.” (Objectives of St. John’s University, 1989-91 St. John’s University Undergraduate Bulletin, at iv.) While "committed to a Christian vision of reality,” SJU also claims to be "an urban institution of higher learning,” and "aims to contribute to the cultural, commercial, industrial, and professional needs and desires of the community, and in turn, to draw upon the cultural richness that a metropolitan area affords” (ibid.).

Under SJU’s bylaws, the President, Vice-President for Campus Ministry and Dean of St. John’s College must be Vincentians. Nonelected Vice-Presidents are appointed by the President — subject to approval by the Board of Trustees — and serve until the President appoints a successor. No other limitation on hiring is expressed in the bylaws.

Prior to completion of discovery, Supreme Court granted SJU’s motion for summary judgment under Executive Law § 296 (11) — the provision of the Human Rights Law that permits religious institutions to exercise a preference for employment of persons of the same religion. Supreme Court found persuasive a "rhetorical question” posed by SJU: "In light of the strong religious position taken by the Catholic church on such matters as abortion, contraception, marriage and divorce, would it be unlawful for a Catholic University to prefer that its Vice President of Student Life have the same religious convictions as that of the Catholic church?” A divided Appellate Division affirmed the grant of summary judgment to SJU dismissing plaintiff’s complaint under Executive Law § 296 (11).

In its argument to this Court, SJU frames the issue by posing the same question that persuaded the trial court to dismiss the complaint. We conclude, however, that even an affirmative answer to that hypothetical issue does not entitle SJU to summary judgment against plaintiff in this case.

Analysis

The Human Rights Law (Executive Law art 15) effects this State’s fundamental public policy against discrimination by establishing equality of opportunity as a civil right (Executive Law § 291). The law prohibits discrimination in hiring or firing based on the "age, race, creed, color, national origin, sex, or disability, or marital status” of any individual (Executive Law § 296 [1] [a]).

An exemption for religious institutions appears at Executive Law § 296 (11):

"Nothing contained in this section shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or education purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting employment or sales or rental of housing accommodations or admission to or giving preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.” (Emphasis supplied.)

We reject plaintiffs threshold argument that SJU is not a "religious institution or organization” entitled to claim the exemption.

Plaintiff contends that only an entity organized pursuant to the Religious Corporations Law can claim status as a religious organization under the Human Rights Law, but our statutory exemption, broadly drafted, contains no such limitation. As an educational organization operated in connection with the Vincentian order — a religious institution or organization— SJU is itself a "religious institution” within the language of Executive Law § 296 (11). Although conceived with the intent of fulfilling a secular educational role, SJU has not abandoned its religious heritage and plainly falls within the exemption for entities that are "operated, supervised or controlled by or in connection with a religious organization” (Executive Law § 296 [ll]).

Having determined that SJU is a religious institution within Executive Law § 296 (11), we next consider what the exemption allows.

Matter of Klein (Hartnett) (78 NY2d 662, 667) provides an analytical framework for determining the scope of our statutory exemption. As noted in that case, we view an exemption for a religious employer in its statutory context in order to ascertain the intent of the Legislature. We are mandated to read the Human Rights Law in a manner that will accomplish its strong antidiscriminatory purpose. To that end, the Legislature repealed a blanket exemption for religious, educational and charitable institutions, and those organizations are now prohibited from engaging in discrimination (see, Sponsor’s Mem, 1965 NY Legis Ann, at 215-216). Section 296 (11) carved out a narrow exception for "preference ** * * in employment, housing, and admissions in order to promote the religious principles of such institutions” (see, Louis J. Lefkowitz, Mem for Governor, in Bill Jacket, L 1965, ch 851).

The exemption does not license a religious employer to engage in wholesale discrimination. Discrimination is unlawful, whether committed by a religious or any other employer. Nor does Executive Law § 296 (11) empower a religious organization simply to discriminate against persons on the basis of religion. Rather, the exemption operates to exclude from the definition of "discrimination” exercise of a preference in hiring for persons of the same faith where that action is calculated by the institution to effectuate its religious mission. A religious employer may not discriminate against an individual for reasons having nothing to do with the free exercise of religion and then invoke the exemption as a shield against its unlawful conduct.

While the exemption afforded by Executive Law § 296 (11) might permit an institution such as SJU to exercise a preference for a Catholic Vice-President of Student Life in the promotion of its religious principles, the record does not establish that this is what actually transpired in the present case. Significantly, SJU did not assert that it had, in fact, terminated plaintiff’s long employment as Dean and Vice-President of Student Life in order that it might limit his position to a Roman Catholic, or that it consciously sought and hired a Roman Catholic as his permanent replacement. To the contrary, in its verified answer SJU denied plaintiff’s allegation that the University engaged in preferential hiring, and its advertisement for a Dean of Student Life did not specify any religious limitation but noted that the University was an equal opportunity employer.

While denying that it had fired plaintiff based on his religion, SJU asserted as an affirmative defense that preferential hiring of a Roman Catholic would fall within the exemption from Federal and State antidiscrimination laws. In seeking summary judgment, SJU claimed that accelerating consideration of that affirmative defense would avoid the waste of a trial, because even a finding of discrimination as alleged would be permitted conduct. In the record before us, however, there are disputed issues of fact as to whether, in firing plaintiff, the University was actually exercising the preference allowed by statute or engaging in the unlawful discrimination alleged by plaintiff. Thus, SJU did not establish a basis for summary judgment.

Issues concerning a hiring decision calculated to promote religious principles of a religious institution highlight the tension between constitutional Free Exercise and Establishment Clauses, as well as the potential for excessive entanglement in religious affairs (see, e.g., Brant, "Our Shield Belongs to the Lord”: Religious Employers and a Constitutional Right to Discriminate, 21 Hastings Const LQ 275 [1994]). In its present posture, this case does not draw us into those, or other, absorbing matters, for the simple reason that an undisputed factual predicate is lacking. Our resolution, therefore, properly rests on the narrower evidentiary ground.

Accordingly, the Appellate Division order should be modified, without costs, by denying defendant’s motion for summary judgment as to the third cause of action and, as so modified, affirmed.

Judges Simons, Smith, Levine and Mercure concur; Judges Titone, Bellacosa and Ciparick taking no part.

Order modified, etc. 
      
      . [1] Plaintiffs first and second causes of action, breach of contract and prima facie tort, were properly dismissed on summary judgment for the reasons stated by Supreme Court and the Appellate Division. We therefore address only his third cause of action, for abusive discharge predicated on religious discrimination.
     
      
      . Likewise, article I, § 11 of the New York Constitution, guarantees that "[n]o person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.” No exemption for religious institutions appears in the Constitution itself.
     
      
      . While this Court has not previously construed the term "religious * * * institution” in Executive Law §296 (11), other jurisdictions have considered the status of religiously affiliated educational institutions that serve a secular community (see, e.g., Gay Rights Coalition of Georgetown Univ. Law Ctr. v Georgetown Univ., 536 A2d 1, 8 [DC App]; Pime v Loyola Univ. of Chicago, 803 F2d 351, 357 [concurring opn of Posner, J.]; see also, Matter of Carr v St. John’s Univ., 17 AD2d 632, affd 12 NY2d 802).
     
      
       Designated pursuant to NY Constitution, article VI, § 2.
     