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2 suits test ministerial exception

Ohio, local cases challenge Catholic Church

Dias
Herx

– More than a year ago, a local school teacher sued the Fort Wayne-South Bend Catholic Diocese, alleging she was fired in an act of religious discrimination after she underwent in vitro fertilization, an act related to both her gender and a medical disability.

And a month ago, in a federal courtroom in Ohio, a jury awarded a former Ohio Catholic school employee $170,000 after she was fired for undergoing artificial insemination to become pregnant. The Archdiocese of Cincinnati is appealing the jury’s verdict.

While the cases appear similar, there are a few key differences between the women and the nature of their lawsuits.

But in both cases, the local representatives of the Roman Catholic Church argue that church officials were well within their rights to terminate the female employees because, as employees, both women violated the teachings of the church. The dioceses each argue they are exempt from the lawsuits by the ministerial exception protected by the Constitution.

Cincinnati case

In April 2011, Christa Dias sued her former employer after she was fired from two Catholic schools as a technology coordinator.

Dias, who taught in the Cincinnati area, told one of her principals that she was pregnant. The principal made a few inquiries and then told Dias she would most likely be fired because she was pregnant and unmarried.

Not a Catholic, Dias told the principal she became pregnant through artificial insemination, not premarital sex. Church officials then told her she was being fired for becoming pregnant through means of artificial insemination, court documents said.

She argued she was a victim of pregnancy discrimination.

At first, attorneys for the archdiocese tried to dismiss the complaint using the ministerial exception to Title VII of the Civil Rights Act of 1964. While the act prohibits employment discrimination on the basis of sex, race, religion, color and national origin, Title VII bars claims under the law if the person who feels discrimination serves in an “essentially religious function,” such as church governance or conducting religious instruction.

The protection under the “ministerial exception” comes from the First Amendment protection against government entanglement in religion or church authority.

In Dias’ case, the archdiocese also argued she violated a morals clause in her contract – by being an unmarried woman who conceived through artificial insemination while engaged in a homosexual relationship. By violating the morals clause, Dias could not argue the archdiocese breached its contract with her, according to court documents.

But the judge overseeing the Dias case ruled in her favor, finding that she was not a minister for the purpose of the exception to Title VII. In fact, she was not even Catholic or permitted to teach church doctrine.

Because the morals clause in Dias’ contract did not address artificial insemination, there were issues of fact in the case that would be best left to the jury, a judge ruled.

A jury heard the case from May 31 to June 3, and on June 4 issued a verdict in favor of Dias and against the archdiocese – awarding Dias $20,000 in damages, $51,000 in back pay and $100,000 in punitive damages.

The archdiocese almost immediately announced it intended to appeal and filed a $200,000 bond with the court while the case proceeds through the U.S. 6th Circuit Court of Appeals.

Local case

After having their first child in 2004, Emily Herx and her husband struggled with infertility. She suffered from a diagnosed medical condition that causes infertility.

So in March 2010, she told her principal at St. Vincent de Paul Catholic School in Fort Wayne, where she taught language arts, that she would need to schedule some sick time while she underwent fertility treatments. More than a year later, she again asked for more time off for the second round of treatment and was then told she needed to meet with the pastor at St. Vincent de Paul Catholic Church.

In that meeting, the Rev. John Kuzmich told her he feared news of the in vitro fertilization treatments would cause a scandal and had already fielded a complaint about the treatment from another teacher, the lawsuit said.

Herx, who had high marks as a teacher, asked Kuzmich whether her job was at risk, and he told her he needed to do more research, the lawsuit said.

School officials decided not to renew her contract, and there was a subsequent meeting between her, her father, who is an attorney, and school officials, including Kuzmich.

During the meeting, Kuzmich told Herx repeatedly she was a “grave, immoral sinner,” and that should news of the treatments get out there would be a scandal, according to court documents.

Kuzmich told Herx the decision to fire her had nothing to do with her abilities as a teacher but rather she was being fired by the diocese for violating the teachings of the Catholic Church, according to court documents.

A request for an appeal before Bishop Kevin Rhoades was denied. Rhoades said that “in vitro fertilization … is an intrinsic evil, which means that no circumstances can justify it,” the lawsuit read.

The Equal Employment Opportunity Commission ruled in favor of Herx, finding the diocese violated her civil rights.

Herx, who is Catholic, alleged that the diocese violated the pregnancy discrimination act of the Civil Rights Act – specifically by firing her when she sought in vitro fertilization treatments after failing to become pregnant by natural means.

In claiming they were exempt from the Americans with Disabilities Act because of the ministerial exception, diocesan attorneys argued that requiring the church to disregard its doctrine would be a violation of the U.S. Constitution.

The case is pending before U.S. District Chief Judge Robert L. Miller in South Bend.

Legal definitions

In January 2012, the U.S. Supreme Court ruled that federal discrimination laws do not apply to religious organizations in their selection of religious leaders.

The ruling came out of the case of Hosanna Tabor Evangelical Lutheran Church and School v. the Equal Employment Opportunity Commission. In that case, a teacher who suffered from a medical condition went on leave and was subsequently replaced. When she threatened to sue, the church fired her for insubordination.

In the Evangelical Lutheran Church and School, teachers were classified as either “called” or “lay.” In this case, the teacher was “called” and considered by the church a commissioned minister.

But applying the ministerial exception in the Catholic cases can be trickier, said David Orentlicher, the Samuel R. Rosen professor of law at McKinney School of Law at Indiana University-Indianapolis.

In the Hosanna Tabor case, the called teachers were ministers in some way and were supervised and had religious teaching, he said.

In the two Catholic school cases, church officials are arguing the teachers have to serve as models for the precepts of the church, he said.

It’s unclear whether Herx and Dias knew exactly what that meant, Orentlicher said.

“The churches would be on stronger ground (here) if they had circulated the principles that they expected their teachers to serve as models or did something to promote this part of the job,” he said. “I think it’s hard, for religious institutions who want to invoke the ministerial exception, they have to do more. If they want to count these as ministers, then they have to take steps to make sure these teachers understand that.”

To find the Archdiocese of Cincinnati exempt in the Dias case, the higher courts will have to go further in defining “minister” than they had gone in the Hosanna Tabor case, he said.

The courts could find that, because these women were teachers in some capacity, they were more involved in promoting institutional values than just support staff, he said.

And it will get trickier, he said, in a case where the offending employee is not a member of the religion running the organization.

“It’s one thing to hire a Catholic and say, ‘You’re here and we expect you to start acting like a Catholic,’ ” Orentlicher said. “You can’t with a non-Catholic. It’s an oxymoron to say a non-Catholic can be a model for Catholic belief.”

To consider someone of a different faith, or no faith, exempt under the ministerial clause “stretches the concept beyond reason,” he said.

“I think the Supreme Court is going to have to refine its standard here,” he said. “Somewhere between the two sets of cases is where the line is going to fall. We need to find that out.”

rgreen@jg.net

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