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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA Fort Wayne school teacher’s allegation of sex discrimination against the Diocese of Fort Wayne – South Bend Inc. can proceed after a federal judge found a jury should decide the issue.
Emily Herx filed a lawsuit against the Diocese and St. Vincent De Paul School after her contract was not renewed in 2011. The Diocese maintained she violated Catholic Church teachings when she underwent fertility treatments and, therefore, it did not want her to continue instructing junior high students at the school.
Herx’s complaint charged the Diocese violated Title VII of the Civil Rights Act of 1964 and the Americans with Disability Act when it terminated her employment.
On Sept. 3, the U.S. District Court for the Northern District of Indiana granted the Diocese’s summary judgment motion on the disability claim but denied the motion for summary judgment on the sex discrimination claim.
The court held in Emily Herx v. Diocese of Fort Wayne – South Bend Inc. and St. Vincent De Paul School, 1:12-cv-122, that a jury should make the decision as to whether Herx was treated differently because she is a woman.
The Diocese asserted it was exempt to liability under Title VII. It pointed to religious exemptions in the measure as giving protection to religious institutions making employment decisions based on the religious and secular activities of their employees.
Judge Robert L. Miller Jr. rejected that argument, holding the exemption to Title VII is not so broad as to give religious organizations the freedom to discriminate on the basis of race, sex or national origin.
Miller was also unconvinced by the Diocese’s attempt to use the “ministerial exception” to Title VII. The U.S. Supreme Court in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC, U.S. __, 132 S. Ct. 694 (2012) found the “ministerial exception” did apply to employees who had specific religious duties but left unanswered whether workers who did not have any religious assignments were also covered by the provision.
Noting the Supreme Court did not adopt a rigid formula for the “ministerial exception,” Miller ruled that finding Herx to be a “minister” of the Catholic Church expanded the exception too far. She had never, Miller said, led the planning for a Mass, had not been ordained by the Church nor did she have any religious instruction or training.
Miller did find grounds to let a jury hear Herx’s contention that her teaching contract was not renewed because she is a woman. Herx argued the only people who could have their employment terminated for undergoing in vitro fertilization treatments are pregnant women and women.
A jury might find the Diocese acted in accordance with its view that in vitro fertilization is immoral, Miller ruled. But the jury could also conclude that since the Diocese has not fired any men for participating in infertility treatments, Herx was discriminated against because of her gender.
Miller was careful to explain his decision to allow the Title VII claim to proceed.
“To so hold isn’t to agree with Mrs. Herx’s contention that the Pregnancy Discrimination Act prohibits religious organizations from drawing a line at infertility treatments they sincerely believe to be gravely immoral,” Miller wrote. “The triable issue is whether Mrs. Herx was nonrenewed because of her sex, or because of a sincere belief about the morality of in vitro fertilization.”
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