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Last updated: Thu. Sep. 25, 2014 - 12:32 pm EDT

Diocese cleared in disability suit

But judge lets former teacher pursue unfair-firing case

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The local Catholic diocese did not violate the rights of a local teacher under the Americans with Disabilities Act when it chose not to renew her contract after she sought treatments for infertility.

But because those treatments were directly related to her gender, the former language arts teacher’s termination might have been sexual discrimination, according to a federal judge.

In a lengthy ruling filed Wednesday in federal court, U.S. District Judge Robert L. Miller Jr. granted the diocese’s request for summary judgment on the disability issue.

He allowed the case to move forward, however, on the issue of whether the Fort Wayne-South Bend Catholic Diocese discriminated against Emily Herx on the basis of her gender under Title VII of the Civil Rights Act of 1964.

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 and was also a member of a local Catholic parish, according to court files. Diocesan officials argued 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.”

In his ruling, Miller found that the federal civil rights law does not give religious organizations “freedom to make discriminatory decisions on the basis of race, sex, or national origin.”

Because Herx had not argued she was the victim of religious discrimination, Title VII’s protection did not necessarily apply to the diocese, court files stated.

Miller also found that nothing so far suggested Herx fit the definition of a “minister” of the church. That means the diocese is not protected by the ministerial exception to Title VII, according to court documents.

A jury should get to decide whether the diocese’s treatment of Herx – firing her for getting the procedure that would make her pregnant having never done so to a male teacher – is in fact discriminatory, the judge ruled.

“The … issue is whether Mrs. Herx was nonrenewed because of her sex, or because of a sincere belief about the morality of in vitro fertilization,” Miller wrote in his order.

Herx is seeking back wages and damages.

Diocesan spokesman Sean McBride declined to comment on the pending litigation.

Herx offered a brief statement Thursday evening.

“I look forward to presenting my evidence to a jury in December of this year,” she said.

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