Take Two #49: The Ministerial Exception

By Kyra-lin Hom

Now that I've regaled you all with my rather spontaneous opinions on dating etiquette (see last week's column), let me return to the topic I had originally intended for last week. As of September 18th, headlines exploded with news of the Emily Herx versus St. Vincent de Paul Catholic School and the Diocese of Fort Wayne-South Bend fiasco. For those who have managed to avoid this legal mess or are unclear on the details amidst all the media's fabulous he-said-she-said, allow me to give a quick rundown.

Emily Herx was a language and literature teacher at the private, kindergarten through 8th grade Catholic school mentioned above until school officials failed to renew her contract for the 2011-2012 school year because her in vitro fertilization procedures went against Catholic Church teachings. Herx retaliated by suing the school and local diocese for discrimination. Things snowballed from there.

Without being able to read the details of the 'suit myself, I've had to resort to reading as many news articles on this case as I can. Let me tell you, trying to pick out the facts amongst the vague statements being tossed around by the news articles, forums and endorsed online bloggers has been frustrating at best. Mainly I've been trying to find out just what Herx agreed to in her teaching contract and an accurate timeline of who knew what and did what when. Here's what I've been able to gather.

Herx was rendered infertile sometime after the birth of her first child (nothing has suggested this child is not completely healthy) and began fertility treatments, including in vitro fertilization, in 2008. It's important to note that infertility is considered a legal disability. During the following 2009-2010 school year, Herx informed the school principal that she would need to take several sick days for her fertility treatments. JournalGazette.net quotes from the lawsuit, “At no point through the couple's first round of (in vitro fertilization) did (the principal) object, alert Herx to any Catholic teachings or doctrine that might be implicated, or take any disciplinary action against Herx.”

Issue didn't arise until a year later, during her second round of treatments, when she again needed to take time off for the same reason. This time she was directed to speak with Reverend John Kuzmich. He informed her in so many words that her treatments were incompatible with the teachings of the Catholic Church and thus the beliefs and lifestyle promoted by the school. Shortly thereafter Herx received word her contract would not be renewed for the 2011-2012 school year.

Now, were this any other kind of institution or employer, this case would be simple black and white. Employers are not allowed to discriminate, especially not against the legally disabled. And the Equal Employment Opportunity Commission did find the diocese in violation of Herx's civil rights and the Americans with Disabilities Act. The legal speed bump, however, is called the ministerial exception.

This loophole “exempts religious institutions from anti-discrimination laws in hiring employees” (thank you Wikipedia) – well, kind of. The law is a little gray when determining just who is and who is not specifically a 'ministerial' employee. Furthermore, we have the issues of Herx's employee contract and what lifestyle expectation precedent the school had already established. So here is where the lawsuit teeters.

According to the archdiocese Herx was in violation of her contract, which required all employees to “comply with and act consistently in accordance with the stated philosophy of the Roman Catholic Church.” But according to Herx, the school has previously not gone after male employees using various forms of birth control (definitely against Catholic teachings) thus putting the legal precedent solidly in her court. And to further complicate things, Herx was not a theology teacher but she would have engaged in the daily religious routine that is a part of all Catholic schools. Despite what many an online commenter may want to believe, she's not entirely clear of the 'ministerial' line.

This case is anything but black and white. Let me state that I am very solidly a pro-choice kind of girl and take no issue with in vitro fertilization whatsoever. Yet I actually want to side with the school in this case because, as someone posted in an online forum on the topic, “If you want to work in a crazy place, you gotta follow their crazy rules.” To put this in secular terms, consider a modeling agency. If you gain that extra pound and find yourself over a size 4 (I'm being generous), it doesn't matter that you ate that cheeseburger on your own time. You're still fired for being fat – and yet we don't have a problem with this form of weight-discrimination because we're used to it. That said, I can't side with the school because they did kick themselves in the teeth by not warning Herx of the potential problem earlier on and by not chasing down their male employees with the same fervor.

I'm so tired of people polarizing on issues just because religion, especially the big bad/great and perfect Catholic Church, is involved. It's not that simple. It never is.

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