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Best Ohio Gender Discrimination Attorney Answer: Was I wrongfully terminated if my employer fires me for seeking fertility treatments? Are fertility problems considered a disability under the ADA? What are my employment rights if I work for a religious organization? Who is the best employment law firm in Ohio?

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As our religious discrimination lawyers have blogged about before, employers are prohibited from requiring employees to participate in religious activities at work.   Such action violates Title VII of the Civil Rights Act of 1964 and Ohio R.C. § 4112.02, as does terminating an employee because he or she doesn’t hold the same religious beliefs as the employer or supervisor.  What happens when an employee shares the same religious beliefs as an employer, the employer is actually a religious institution, for instance, a Catholic diocese, and the employee is terminated for an alleged violation of a religious rule, custom, or practice?

Recently, a similar situation was addressed by a federal judge in Indiana.  Emily Herx, a former teacher at the St. Vincent de Paul school and employee of the Fort Wayne-South Bend diocese brought suit alleging that she was wrongfully fired after undergoing in vitro fertility treatments.  In the past, the church has taken a formal stance against in vitro fertilization or artificial insemination. Herx herself is a member of a local Catholic parish, but when she found out she suffered from infertility she pursued the treatments that the Catholic church opposes.  When her school found out about the treatments it decided not to renew her teaching contract.

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Infertility can be a protected disability under the Americans with Disabilities Act (“ADA), so Herx filed suit alleging that the was discriminated against based on her disability and gender.  The diocese argued that it was exempt from certain provisions of the Civil Rights Act and ADA because it is a religious employer.  The judge dismissed Herx’s disability claim, however, ruled that Herx’s claims of gender discrimination could proceed to a jury. The judge found that religious organizations are not granted the, “freedom to make discriminatory decisions on the basis of race, sex, or national origin” through the exemptions in the applicable laws.  Herx did not bring a claim alleging religious discrimination so the judge found that the exemptions contained in Title VII for religious employers did not apply.

The court doesn’t read the case law the same way the Diocese does. Title VII doesn’t give religious organizations freedom to make discriminatory decisions on the basis of race, sex, or national origin. Petruska v. Gannon Univ., 462 F.3d 294, 303 (3d Cir. 2006) (quoting Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985)). Title VII’s exemptions are limited specifically to claims of discrimination premised upon religious preferences, and Mrs. Herx isn’t complaining about religious preference. The Rayburn court summarized the history of Congressional action relating to Title VII:

The legislative history reinforces the plain meaning of the statutory text. The original Act passed by the House in 1964 excluded religious employers from coverage altogether. The final version excluded such employers only with respect to discrimination based on religion, and then only with respect to persons hired to carry out the employer’s “religious activities.” In 1972 the statute was amended to delete the word “religious,” but Congress specifically rejected proposals to broaden further the scope of the exemption. To the contrary, the analysis pertaining to § 702 states clearly that “[s]uch organizations remain subject to the provisions of Title VII with regard to race, color, sex or national origin.” Rayburn v. General Conf., 772 F.2d at 1167 (quoting Section-by-Section Analysis of J.R. 1946, the Equal Employment Opportunity Act of 1972, reprinted in id. at 1844, 1845) (internal citations omitted).

Consistent with Rayburn v. General Conf., courts across the country have found Title VII to apply to claims against religious employers for discrimination based on race, sex, and national origin. See, e.g., Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 192 (4th Cir. 2011) (“Section 2000e-1(a) does not exempt religious organizations from Title VII’s provisions barring discrimination on the basis of race, gender, or national origin.”); Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410, 413 (6th Cir. 1996) (Section 2000e-1(a) doesn’t “exempt religious educational institutions with respect to all discrimination. It merely indicates that such institutions may choose to employ members of their own religion without fear of being charged with religious discrimination. Title VII still applies, however, to a religious institution charged with sex discrimination.”); EEOC v. Pacific Press Publishing Ass’n, 676 F.2d 1272, 1279 (9th Cir. 1982) (“The legislative history of this exemption shows that although Congress permitted religious organizations to discriminate in favor of members of their faith, religious employers are not immune from liability for discrimination based on race, sex, national origin, or for retaliatory actions against employees who exercise their rights under the statute.”); Hopkins v. Women’s Div., General Bd. of Global Ministries, 238 F. Supp. 2d 174, 180 (D.D.C. 2002) (applying Title VII to a race discrimination claim against a religious employer); Elbaz v. Congregation Beth Judea, Inc., 812 F. Supp. 802, 807 (N.D. Ill. 1992) (“By its very terms, § 2000e–1 applies only to discrimination on the basis of religion. The ban on discrimination in employment on account of race, national origin, or sex is still applicable to religious organizations.”).

Title VII’s statutory exemptions would apply in this case only if Mrs. Herx’s claims were based on religious discrimination. But her Title VII claim alleges sex discrimination, not religious discrimination.

Although Herx will still have to convince a jury that she suffered from discrimination or wrongful termination, her claims survive an important procedural hurdle in the litigation process.  At first blush it may seem like the decision to terminate Herx was based on a difference in religious beliefs regarding in vitro fertilization, which raises a question of religious discrimination, however, after more analysis, Herx’s attorneys were able to see other issues with the diocese’s actions relating to gender and disability and ultimately, at least one of her claims survived to be heard by a jury.

If you feel that you are being discriminated based on your religion, gender or sex, then call the right attorney.  It is never appropriate to discriminate against female employees. Discrimination against women includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied a promotion, and denied wages or not receiving equal pay. When you call the right attorney to schedule a free and confidential consultation at 866-797-6040, you will meet with an attorney from Spitz, The Employee’s Law Firm to discuss wrongful discrimination claims and help you determine the best way to pursue your gender/sex discrimination claims.


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