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Educator’s suit goes to judge

Catholic teacher fired after using in vitro fertilization


– Filed just over two years ago, the case of Emily Herx v. the Fort Wayne-South Bend Roman Catholic Diocese has moved into the summary judgment stage.

After a series of motions filed this week in federal court, U.S. District Court Judge Robert L. Miller Jr. must now decide whether to rule for the former diocesan English teacher or side with a local Catholic Church in a fight over in vitro fertilization treatments.

If he declines to rule in favor of the diocese, as its attorneys requested, the case will head to mediation or trial, according to court records.

Herx sued the diocese in spring 2012, claiming she had been the victim of discrimination when diocesan officials fired her from her teaching job at St. Vincent de Paul School when she underwent in vitro fertilization.

Herx suffers from infertility, a protected disability under the Americans with Disabilities Act. She argues her termination was a violation of both the Civil Rights Act of 1964 as well as the Americans with Disabilities Act.

In vitro fertilization is banned under Catholic doctrine, and when news of Herx’s treatment came to light, diocesan officials decided not to renew her contract. Herx, a Ball State graduate with a teaching license from Taylor University, had taught language arts at the school. She was also a member of a local Catholic parish, according to court documents.

Diocesan officials argue they are protected from her claims as a religious organization. Any enforcement of the Civil Rights Act as it applies to women and pregnancy, or the ADA, are prohibited by those exemptions for religious employers, the diocese argues.

The diocese also contends Herx was a lay “minister” in the church, and therefore her termination was protected by the ministerial exception of those two acts.

“It is undisputed the decision not to renew Herx’s contract was religiously based,” diocesan attorneys wrote in their motion for summary judgment. “The undisputed facts show that Herx’s sex, pregnancy, or disability were not factors in the decision not to renew her contract.”

Herx’s attorneys argue she was the victim of discrimination because the church did not approve of the manner in which she tried to get pregnant.

“The (Civil Rights Act) must protect the rights of women to attempt to have children through all methods,” her attorneys wrote in their response to the motion for summary judgment. “Otherwise, it would allow employers to substitute their judgments for those of their employees’ doctors and give them the right to ban certain types of medical procedures.”

During the course of the lawsuit, Herx argued that three male staff members of the school who visited strip clubs were treated differently – not fired – when their conduct came to light.

Church officials said that the men’s “sin” was one of imprudence and against chastity, rather than the gravity of in vitro fertilization, which is “a sin against the dignity of human embryos and the rights of children.” The men were also “remorseful” over their conduct, which the diocese contends Herx was not, according to court documents.

Herx argued, however, that the diocese is now asking the court to “weigh sins.”

“The morals clause does not say that teachers must follow church teachings unless they are remorseful,” her attorneys wrote. “It does not say that teachers must follow church teachings unless they are remorseful.”

Herx’s attorneys argued the diocese changed its documents just prior to the filing of her lawsuit, ratifying a new policy “expressly prohibiting employees from participating in IVF.”