Title VII v. Catholic Church over in vitro fertilization

Scott Forsyth, The Daily Record Newswire

A “resounding victory for women’s equality (that) should send a message to all employers everywhere they cannot use religion to justify discrimination,” so trumpeted the ACLU about the $1.9 million verdict in Herx v. Diocese of Fort Wayne-South Bend, Inc., 1:12-CV-122 (N.D. Indiana 2014).

Yes, $1.9 million, of which $1 million was punitive, is a lot of money. Yet, the fact the trial court let a jury decide the issue of liability and not rule on a motion for summary judgment in favor of the plaintiff is troublesome.

Emily Herx was an English teacher at a Catholic middle school. She wanted to get pregnant but could not conceive naturally. She tried artificial insemination and then in vitro fertilization. She told her principal about the in vitro fertilization treatments before they began. The principal waited until the second round of treatments to inform diocese officials.
In the view of the Catholic Church, in vitro fertilization is “a grave and immoral act.” Fertilized embryos may and do get discarded, an outcome that is disrespectful of life.

Herx had signed an employment contract containing a morals clause. If she engaged in conduct, “professionally (or) personally” not “in accordance with the episcopal teaching authority, law and governance of the Church,” the diocese could terminate her. The clause assured Herx would be a good Catholic role model to her students.

When the diocese learned of the treatments, it asserted Herx had violated the morals clause. It let her go at the end of the school year. It did not say how her students would hear of the treatments and once revealed how her undergoing the treatments would lead students astray.

Herx filed a complaint with the Equal Employment Opportunity Commission, which sided with her. She then commenced a lawsuit, charging the diocese discriminated against her on the basis of her sex, in violation of Title VII, and on the basis of her infertility, in violation of the Americans with Disabilities Act.

In pre-trial skirmishing, the diocese asserted religious employers are exempt in all respects from Title VII’s ban on employment discrimination. For support it cited two provisions in the statute and one court of appeals decision from 1991.

The court countered four other courts of appeal have held the provisions do not grant a total exemption. Instead, the provisions only allow a religious employer to favor the hiring of individuals of the employer’s faith, to carry out the employer’s activities. A religious employer cannot discriminate among its employees in any other way prohibited by Title VII, such as race, national origin and sex.

The diocese also argued Herx was a “minister” of the church, placing her outside the protections of Title VII. This exception derives from the Establishment and Free Exercise Clauses. They prevent the government from interfering with a religious employer’s decision to fire a minister.

Whether a person is a minister turns on the circumstances of the employment. In Herx’s case, the court did not find much that was ministerial about her job. She was not ordained, did not receive religious training and did not teach religion.

Pregnancy is only a condition women experience. Therefore, discrimination on the basis of pregnancy, or the attempt to get pregnant, is discrimination on the basis of sex.

An employee can prove discrimination under Title VII by presenting direct evidence of the employer’s discriminatory intent or indirectly by, among other factors, showing similarly-situated employees outside her class were treated more favorably, McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973).

You might think the above facts, not disputed, would have prompted the court to rule as a matter of law the diocese intentionally discriminated against Herx on the basis of her sex. It did not. Instead, the court gave the diocese the opportunity to convince a jury some reason other than sex motivated it to terminate Herx. According to the court, that reason could be “a sincere belief about the morality of in vitro fertilization.”

We do not know what additional evidence of its intent the diocese presented at the trial. Various media quoted some pious testimony by diocese officials, all male, about the immorality of women who undergo in vitro fertilization and infertile women needing to trust God more.

Herx did show the diocese maintained a double standard. For example, a strip club tossed three male teachers after they “inappropriately” touched a stripper. Their behavior violated the morals clause in their contracts. The diocese only gave them a written warning.

The court dismissed the ADA claim. It agreed with Herx that infertility is a disability protected by the statute. However, it held the diocese did not discriminate against her on the basis of her infertility but on the basis of the medical treatment she underwent to overcome her infertility.

What if the only way for Herx to get pregnant, short of a miracle, was in vitro fertilization? Would not her termination be effectively a result of her disability?

The court did not want to consider these questions for fear “the First Amendment would move centrally into this litigation.”

The last paragraphs of the Supreme Court’s decision in Burwell v. Hobby Lobby, Inc., 573 U.S. __ (2014), suggest the religion clauses within the First Amendment may not trump anti-discrimination statutes. We shall see if the diocese tests this suggestion on appeal.

In the meantime we can go along with the ACLU and rejoice in Herx’s victory, knowing the victory was not total. With a few exceptions, religious employers must treat their employees the same as nonreligious employers do.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.