By Molly Redden
When Emily Herx first took time off work for in vitro fertilization treatment, her boss offered what sounded like words of support: “You are in my prayers.” Soon those words took on a more sinister meaning. The Indiana grade school where Herx was teaching English was Catholic. And after church officials were alerted that Herx was undergoing IVF—making her, in the words of one monsignor, “a grave, immoral sinner”—it took them less than two weeks to fire her.
Herx filed a discrimination lawsuit in 2012. In response, St. Vincent de Paul School and the Fort Wayne-South Bend Diocese, her former employers, countered with an argument used by a growing number of religious groups to justify firings related to IVF treatment or pregnancies outside of marriage: freedom of religion gives them the right to hire (or fire) whomever they choose. But in this case, the diocese took one big step further. And it’s is arguing that its religious liberty rights protect the school from having to go to court at all.
“I’ve never seen this before, and I couldn’t find any other cases like it,” says Brian Hauss, a staff attorney with the American Civil Liberties Union Center for Liberty. The group is not directly involved in the lawsuit but has filed amicus briefs supporting Herx. “What the diocese is saying is, ‘We can fire anybody, and we have absolute immunity from even going to trial, as long as we think they’re violating our religion. And to have civil authorities even look into what we’re doing is a violation.’…It’s astonishing.”
The key legal question in Herx’s case is whether she was fired for religious reasons or her firing was an illegal act of sex discriminations.
Title VII of the Civil Rights Act bans employers from discriminating on the basis of race, color, religion, sex, and national origin. An exemption in that law allows religious institutions to favor members of their own faith during the hiring process. But there’s no religious exemption for sex discrimination—which is how Herx is framing her dismissal. As proof, she showed that the diocese had never fired a male teacher for using any type of infertility treatment. In response, the diocese asserted that it would fire a male teacher who underwent fertility treatments against church teachings—it just hasn’t done so yet. In early September, a federal judge ruled that there was enough evidence on both sides of the dispute for a jury trial.
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