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Sometimes leaving the TV on for background noise can yield results.  About 2 weeks ago, I caught a brief teaser for an upcoming story about a former Indiana  Catholic school teacher, Emily Herx, who was fired by her diocese after they learned she was trying to have a baby. More specifically, after they learned she was trying to concieve using fertility treatments. Here’s what happened:

Emily Herx was an English teacher at St. Vincent de Paul School in Fort Wayne, Iowa, a member of the Diocese of Fort Wayne-South Bend.  According to Herx, she began In Vitro Fertilization treatments in 2010, with the support of her supervisor, who was also the St. Vincent de Paul School’s principal. Shortly after she requested time off for her second IVF treatment in 2011, the school’s pastor requested a meeting with her.

During the meeting, the pastor called her a “grave, immoral sinner” and told her that she should have kept quiet about her treatments stating that some things are “better left between the individual and God.”  Eleven days later, Herx was notified that her teaching contract would not be renewed because of “improprieties related to church teachings or law.” Herx appealed her termination to the Bishop. It was then that the Bishop referred to IVF treatment as “an intrinsic evil, which means that no circumstances can justify it.

Without calling it was it was, the Diocese raised the ministerial exception to discrimination in its response to Herx’s federal complaint, stating it “views the core issue raised in this lawsuit as a challenge to the diocese’s right, as a religious employer, to make religious based decisions consistent with its religious standards on an impartial basis.”  To further its argument, the Diocese clarified what those “religious standards” were that it was supporting by firing Herx: “the church promotes treatment of infertility through means that respect the right to life, the unity of marriage, and procreation brought about as the fruit of the conjugal act.  There are other infertility treatments, such as in vitro fertilization, which are not morally licit according to Catholic teaching.”  So, essentially the Diocese is arguing that IVF conflicts with the beliefs espoused and promoted by the Catholic Church; thus, in terminating Herx, it was upholding its stance on the matter and eliminating the employment of those whose actions clash with it.

The first hurdle Herx faces is proving the IVF treatments are covered under Title VII’s prohibitions of sex discrimination and pregnancy discrimination. This question was recently answered by the Seventh Circuit in Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008), where the court held that In Vitro Fertilization is a medical condition related to pregnancy or childbirth, therefore it is covered under Title VII’s pregnancy discrimination amendments. This means if an employer allows employees time off for non-pregnancy related, short-term disabling conditions, it must allow female employees time off for pregnancy-related procedures, such as Herx’s request for time off for IVF.

The second hurdle Herx faces is proving she does not fall under ministerial exception to employment discrimination. We already know the Diocese’s argument. For them, Herx’s IVF treatments clashed with the teachings and beliefs of the Catholic Church. Being a religious employer allows them to make employment decisions which uphold and support their teachings and beliefs, without consequence.

Herx and her counsel argue that the ministerial exception does not apply because she was not a “minister,” as defined by the Supreme Court. First, Herx is not Catholic. Second, since her employment began with the school in 2003, she only taught English, a secular subject. In addition to never teaching a religion class, she was also never required to participate in any Catholic education or training.

So will the ministerial exception apply?  The EEOC didn’t think so and we don’t either.

The purpose of the ministerial exception is not to provide religious employers with a “get out of jail free” card when it comes to discrimination claims. The point is to provide religious employers the freedom to hire, fire, promote, etc. employees considered ministers in the organization. Ministers are defined as those who are somehow involved in promoting the employer’s religious beliefs and teachings.

Have a different point of view?  Think the federal court will find differently?  What do you think about this?

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