Woman Fired for Fertilization Treatments Will Test Bounds of Title VII’s Ministerial Exception

By Staff Report

Apr. 30, 2012

It’s no secret that I approach employment law from a pro-employer viewpoint. It’s right in the blog’s title: The Practical Employer.

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 schoolteachers, 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 her 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 in-vitro fertilization “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 in-vitro fertilization treatments. For that reason, the outcome of this case will likely hinge on two legal issues:

  1. Does Title VII’s prohibition against sex and pregnancy discrimination cover in-vitro fertilization treatments?
  2. Does Herx’s employment fall outside Title VII’s ministerial exception that protects a religious institution’s constitutional right in the selection of ministerial employees, as recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC?

If the court answers both questions with a “yes,” then Herx wins.

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 in-vitro fertilization as a medical condition related to pregnancy or childbirth. Pregnancy and pregnancy-related medical procedures (such as in-vitro fertilization) differentiate female employees from their male counterparts. As long as 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 in-vitro fertilization treatments.

This case, however, is complicated by the fact that Herx’s in-vitro fertilization 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.

To visit the Ohio Employer’s Law Blog, click here or email or call (216) 736-7226.


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