Brief Update on Church Entitlement to Fire for IVF

This past spring I wrote about a couple of cases in which women who worked for Catholic schools were fired for using ART.  One was Emily Herx, a married high school teacher who was fired for using IVF.  I’ve been following the case and wanted to offer a brief update.   Two national groups (unsurprising ones–the ACLU and the ASRM) have filed briefs on Herx’s side.

The issue in the case is framed as one of discrimination based on disability.   Herx and her husband are infertile.   (I think it is pretty clear that this would generally count as a disability.)  It is generally impermissible to discriminate based on a disability.   The archdiocese asserts a right, as a religious employer, to discriminate if the discrimination is supported by Church teachings.   (Remember that the Catholic Church considers IVF to be an intrinsic wrong, even if the gametes used are those of a married couple.)

There’s no decision yet.  I’m posting this now as a reminder that the issue is out there.  The involvement of national organizations suggests to me that the case may continue for some time and gradually become a higher proflie matter.   We shall, of course, see.


6 responses to “Brief Update on Church Entitlement to Fire for IVF

  1. I’m very surprised that infertility is counted as a disability. I had thought that a disability means something that impacts daily functioning.

    • It think you are right about what counts as a disability, though I think the language is “major life activity.” It’s not my field but my understanding is that some courts have held that reproduction is one of those major life activities so that if you are medically unable to reproduce, you could be considered disabled. But I don’t think this is what I’d call clearly established. Maybe I’ll see if I have a colleague who knows more about this than I do.

  2. I also wonder how the employer found out?

  3. If she is an employee and taxes are taken out of her check and she gets workman’s comp etc then she is an American worker and has to be subject to the same treatment as all other American workers. Which means all U.S. Employer’s have to abide by the same rules. They don’t get special exemptions from the rules. If they want the right to pick and choose atributes unrelated to the job of being a high school teacher then they might want to look at getting people to volunteer for that position. Why does she deserves the same expectations as any other employee of any business. They can say well she should not take a job here if she does not like the rules but then that is exactly why the rules were put in place – because employers have economic power to leveredge and people were in the past willing to subject themselves to being treated unfairly in order so that they could work and feed their families. When push comes to shove people will put themselves in dangerous precarious unhealthy and abusive situations tolerate harassment and all kinds of unpleasant stuff because they need the money. So the fact that she took the job knowing they were religious and conservative is besides the point. Plenty of children took jobs in factories despite knowing that it was cruel and demeaning – this law is here to protect the American worker. I find her discrimination angle interesting because it is not a disability its an illness, for instance there is nothing she was unable to do at work because of being infertile and they did not need to make physical accommodations to the workplace sot that she could do her job. She has a medical condition that is none of their business. I think its wrong that she is using IVF and eggs but it is a legal thing to do for the time being so that cannot be the reason for letting her go. Why did they admit to that? They should have said she sucked as a teacher or something. Most states are hire and fire at will no guarantee of employment.

    • Religious organizations do get special rules, at least sometimes. They are exempted from some civil rights laws. Cases like this one come up because it’s not clear how broad that exemption is, by which I mean what sorts of employees it reaches. (I think I talked about this in the earlier post on this case.)

      An illness can certainly be a disability. The key is that it limit major life activities–so you have to figure out what counts in that. What you’re thinking about (with the references to workplace stuff) is that employers have to offer reasonable accomodations to make workplaces accessible. But this is a different aspect of the law. You cannot discriminate against someone because of a disability–even if the disability, without regard to whether the disability is work related. So an employer cannot say ‘I won’t hire anyone who has cancer.”

      Finally, for what it is worth–I do believe she’s using her own eggs and her husband’s sperm. It’s just they used IVF.

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