It's no secret that I approach employment law from a
pro-employer viewpoint. It's right in the blog's title: The Ohio Employer's
Law Blog. Yet, despite my management-side tendencies, I call 'em as I see 'em,
and every now and again a story about an employer's treatment of an employee
outrages me. This is one of those stories.
According to ABC News, an Indiana Catholic church has fired
one of its school teachers, Emily Herx, after it learned she was undergoing
fertility treatments to become pregnant. In her Title VII lawsuit [pdf], she claims a senior church
official told that her attempt to become pregnant through in-vitro
fertilization made her a "grave, immoral sinner." According to the lawsuit,
when Herx appealed her termination to the Bishop, he called IVF "an intrinsic
evil, which means that no circumstances can justify it."
If those two statements are true, there should be little
doubt that the church fired Herx because of her IVF treatments. For that reason,
the outcome of this case will likely hinge on two legal issues:
If the court answers both questions with a "yes," then
On the first issue, I defer (as will the court) to the
7th Circuit's 2008 decision in Hall
v. Nalco Co., which concluded that Title VII's pregnancy discrimination
amendments cover IVF as a medical conditions related to pregnancy or
childbirth. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate
female employees from their male counterparts. As long an employer is going to
permit any employee to take time off for a non-pregnancy related short-term
debilitating condition, it must make the same allowance for a female worker's
pregnancy-related medical procedures, such as IVF treatments.
This case, however, is complicated by the fact that
Herx's IVF is contrary to the doctrine of her religious employer. According to
Herx's lawsuit, she worked as a secular literature and language arts teacher.
She is not Catholic, never taught any religion classes, and was not required to
complete any training or education in the Catholic faith as a condition of her
employment. If there is nothing religious about Herx's employment or
responsibilities, it would seem that her job falls outside the ministerial
exception as laid out by the Supreme Court in Hosanna-Tabor. Indeed,
this is exactly what the Southern District of Ohio held in a strikingly similar case just last month:
To prevail under the ministerial exception, the Diocese
will have to convince the court that all of its teachers, even those of a
different faith like Herx, serve as "moral exemplars" for its students. Rick
Garnett, associate dean and professor of law at Notre Dame Law School,
articulates this argument:
A lot of Catholic schools ... every teacher brings the kids
to Mass, is involved in sacramental activities.... It's not just one teacher who
teaches religion, religion is pervasively involved. The key question is whether
it would interfere with the religious institution's religious mission, its
religious message, for the government to interfere in the hiring decision. [Huffington Post]
This case will be fascinating to follow, much more so for
the religious implications than for the pregnancy discrimination implications.
Whether Title VII protects a woman's right to undergo fertility treatments is a
fairly well-settled issue. Whether a Catholic Church has to provide that right
to its secular employees, however, is open to vigorous debate. As someone who
thinks that people should not have to choose between having a family and
holding a job, I am rooting for Emily Herx.
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