Catholic School Fires Woman for Undergoing In Vitro Fertilization

A woman in Indiana was fired from her job as a Catholic school teacher for using in vitro fertilization. Her situation manages to implicate virtually all of the recent topics on this blog — discrimination based on reproductive choices, specifically pregnancy-related, the ministerial exception to federal anti-discrimination laws, and disability discrimination. Whoa boy.

Emily Herx was fired from her job at a Catholic school for undergoing in vitro fertilization, which the school appeared to think was very un-Catholic, as well as “grave and immoral.”  Continue reading

Discriminating Religiously: Hosanna v. EEOC

The Supreme Court recently handed down a unanimous decision stating that a religious organization can discriminate in any way it wants to against any employee considered to be a “minister.” This means, essentially, that a church can discriminate against an employee for any reason, so long as it can show that the individual has “a role in conveying the Church’s message and carrying out its mission.”

In a slightly more technical post, I discuss my legal quibblings with the holding. But here I want to focus on what the case actually means: someone got sick, and her employer decided that, no matter what she or her doctors thought, she probably wasn’t going to be good at her job anymore, or her illness would be too much of a hassle, or maybe her boss was just irrationally scared of sick people — lots of bosses are, that’s why we have the Americans with Disabilities Act. No matter. She got fired because she was sick, and the Court essentially said, too bad.

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Hosanna in the Details Part II: Leaving the Worst for Last

A more general overview of my views on the decision can be found here.

In Part I, I discussed how existing employment law could have been used as a framework to resolve the dispute in Hosanna without implicating any complex questions of church and state, so long as the courts were clear that reinstatement was not an available remedy. I argued that the existing pretext analysis would have allowed the court to find that Perich (the plaintiff) was discriminated against because she was disabled, and the court could have done so without implicating any First Amendment or Establishment Clause issues.

In Part II I want to complicate matters and discuss a hypothetical scenario in which the church’s beliefs actually do come into play, a situation in which the fact that the employer is a religious organization actually matters. Essentially, I want to argue that the most complex questions involved — who counts as a “minister” and what does a “minister” do in a given church — should be the final tier of analysis, reached by the court only when all else has failed.

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Hosanna In the Details Part I: the Ministerial Exception as a Pretext for Discrimination

A more general overview of my views on the decision can be found here.

The Supreme Court recently handed down a decision concerning whether religious organizations can discriminate against certain “ministerial” employees — i.e., those employees who are considered the face or the voice of a religious organization. The Court held that religious organizations are completely exempt from anti-discrimination laws as they concern these kinds of employees. So long as religious employer can show that an employee is a “minister,” the employer can discriminate against them all they want, the courts won’t get involved.

In the next two pieces, I want to discuss why this holding is both unnecessarily broad and requires the courts to unnecessarily involve themselves in the church. In these two pieces I want to propose a different option: rather than making a blanket exception for cases involving religious employers and ministerial employees, I suggest the following: discrimination suits against religious employers should proceed in exactly the same manner as any other discrimination suit, with the exception that reinstatement shouldn’t be a remedy (the court shouldn’t be allowed to order the employee be rehired) and the court should be barred from inquiring into the underlying validity of any religious belief (this will make more sense later).

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