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Can An Employer Fire Women For Getting Fertilization Treatments? Best Lawyer Reply!

On Behalf of | May 4, 2015 | Employment Discrimination, Gender Discrimination, Religious Discrimination, Wrongful Termination |

Best Ohio Gender Discrimination Attorney and Top Religious Discrimination Lawyer Answer: Is it disability discrimination if my employer fires me for seeking fertility treatments? If I violate a religious rule can I lose my job? Is it wrong for my employer to enforce policies more harshly against female employees?

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This past fall our employment discrimination attorneys blogged about a case involving Emily Herx’s termination. The former employee of the Fort Wayne-South Bend diocese sued her employer alleging that she was wrongfully fired after participating in in-vitro fertility treatments. The church affiliated with Herx’s employer has taken a formal stance against in vitro fertilization or artificial insemination. As our employment law lawyers noted in the first blog, state and federal law prohibits an employer from requiring employees to participate in religious activities at work.  Title VII of the Civil Rights Act of 1964, and Ohio R.C. §4112.02, protect a covered employee from being terminated because he or she doesn’t hold the same religious beliefs as the employer or supervisor.

Although the first thought that may come to mind involves a claim of religious discrimination, but Herx claimed to be a member of a local Catholic parish, so religion was not the central issue in her case. Instead, Herx alleged that infertility was a protected disability under the Americans with Disabilities Act (“ADA”), and that she was discriminated against based on her disability and gender. As our lawyers noted in our first blog on Herx’s claims, even though the judge dismissed her disability claim, he allowed Herx’s claims of gender discrimination to proceed to a jury. The judge did so over the objection of the Diocese’s claims that they were exempt from the federal laws designed to protect employees in Title VII of the Civil Rights Act of 1964. The United States District Court for the Northern District of Indiana reasoned, “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.”

What type of lawyer do I need to sue my boss for employment discrimination? Call attorney Brian Spitz and the employment law lawyers at Spitz, The Employee’s Law Firm for a free consultation regarding your gender discrimination, religious rights claims and wrongful termination lawsuit.

At this time, we are able to provide an update on Herx’s case. Recently, Herx’s claims did proceed to trial. After hearing her case, the jury found in her favor and awarded her a sizeable amount including $1,750,000 in compensatory damages, $1.00 in punitive damages, $125,000 for medical care, and $75,000 for lost wages. Due to statutory caps, the judge ended up reducing Herx’s award, but she still was able to walk away with $543,803.00; or over a half million dollars in damages.

Additionally, the Court denied the Diocese’s motion for judgment as a matter of law based on the theory that the jury simply got the case wrong. In the Order denying the motion, the U.S. District Court Judge Robert L. Miller wrote:

Ample evidence supports the jury’s determination that the Diocese didn’t renew Mrs. Herx’s contract because of her sex. Officials from the Diocese testified that a male teacher whose wife was undergoing in vitro fertilization would be fired, but Mrs. Herx presented evidence from which the jury could have inferred the opposite.

The Diocese provided no instruction as to how principal Guffey (or her superiors, for that matter) were to enforce the morals clause in the teachers’ contracts. The jury could have inferred that the policy was one of indifference unless a transgression came to light, such as when word of the strip club visit got around school, or when Mrs. Guffey divorced and remarried, or when a teacher wed in a Lutheran church. At those points, the Diocese stepped in and took what it considered the appropriate action. Otherwise, nobody asked teachers if they were living their lives consistent with the morals clause.

Mrs. Herx rightly describes this as a “don’t ask, don’t tell” policy. When Msgr. Kuzmich met with Mrs. Herx, he told her that their meeting wouldn’t have been needed if she hadn’t raised the issue or talked to others about it, but since she did so there was a possibility of scandal. In vitro fertilization treatment is harder for a female teacher to keep quiet than it would be for a male. The female teacher can’t teach at school when her body is needed for the treatment, so she needs to miss work. Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008). The “don’t ask, don’t tell” approach undercuts the testimony that a male teacher would be dismissed if his wife underwent in vitro fertilization.

As mentioned before, things got ugly after Mrs. Herx was let go. The Diocese’s school superintendent, Dr. Mark Meyers, noticed that the school handbook said nothing about the morals clause or in vitro fertilization, so he proposed an amendment to the handbook. The bishop approved the change ten months later. The amended policy reads, “Any diocesan employee who obtains an abortion by any means, or who participates in in vitro fertilization or any other practice or procedure which, by design or related process, results in the unnatural destruction of human embryos, will be denied the privilege of continuing her employment with the diocese, subject to an appeal to the Bishop.” That this policy is limited to women (“her employment”) isn’t quite a smoking gun, but provides a solid base for an inference that Mrs. Herx’s contract wouldn’t have been nonrenewed had she been male.

As our lawyers noted in our first blog, although the first issue raised by Herx’s situation suggests that a religious stance was behind the reasoning for her termination, her attorneys were able to identify that the Diocese’s policy, in application, impacted female employees in a less favorable fashion than male employees.

If you feel that you are being discriminated based on your 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.


The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. Your best option is to contact an Ohio attorney to obtain advice with respect to gender discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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