Balancing religious freedom & employment rights

By Michael J. Bemi

neveragainrevThe young woman had been a mathematics teacher at the church-related high school for more than seven years. She was beloved by her students; they praised her ability to convey difficult concepts in an accessible, clear and engaging style.

The school board awarded her ‘teacher of the year’ status three times for her demonstrated skill at helping many students overcome their fear of mathematics, and for creating a positive learning environment around a topic often dreaded by many students. Parents were regularly vocal about what an outstanding role model she was to her students.

It was no secret to the principal and most of the other teachers that this young woman sought to start a family, and that she and her husband were having great difficulty conceiving a child. Further, the teacher informed her principal that she and her husband had finally decided to engage a fertility expert and to pursue in vitro fertilization. They felt strongly that they’d tried everything else and were left with only this remaining alternative.

bldjp022005_81The principal — herself known for being very understanding and compassionate — acknowledged the young woman’s intentions. She simply advised the young teacher to “keep the matter between the two of us,” as in vitro fertilization was inconsistent with the sponsoring Church body’s doctrine and in conflict with the ‘religious doctrines clause’ in the teacher’s contract.

Several months later, the young teacher became pregnant. At a holiday weekend faculty get-together, her husband “let it slip” to another teacher that the pregnancy was the result of in vitro fertilization.

That teacher reported this to the parish pastor, who instructed the principal to fire the young woman for violation of the ‘religious doctrines cause’ in her contract. The young woman consequently sued for pregnancy discrimination, violation of gender-neutrality requirements, and emotional anguish and distress. The parish and high school counter-sued for breach of contract and also asserted the ministerial exception.

The fallout — and its outcome

It’s important here to note that this incident caused tremendous strife and discontent within the parish, the high school, and even the broader community. Parents and students rallied to the teacher’s defense. People wondered aloud how it could possibly be doctrinal to treat such a fine and admirable young couple in what appeared to be such a patently un-Christian fashion.

Students threatened class boycotts. The principal herself suggested that she should resign, though the community supported her virtually unanimously; even the pastor had forgiven her “oversight.”

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The trial court rejected the ministerial exception motion — which, if allowed, would have prevented the court from accepting and hearing the case lest it infringe upon matters of ecclesiastical governance in violation of the First Amendment’s Establishment and Free Exercise clauses. It did so, because the teacher was not an ordained or commissioned minister; she had not received any special religious, theological or doctrinal training; she was never titled or described as a minister or anything similar; and she exclusively taught secular mathematic concepts and principles.

Upon later argument, the court noted that the teacher’s contract did not explicitly define doctrinal strictures, nor did the hiring process provide information that would do so for an applicant.

Both parties agreed that the principal’s actions appeared to condone or even approve of the teacher’s actions, or at least, created ambiguity for the teacher.

Finally, discovery showed that a male teacher — who had used in vitro fertilization with his wife — was not similarly terminated.
The parish and high school lost the case and paid a very costly judgement.

What might you do to prevent a similar result?

First, understand that religious freedom protections are very broad, but not a “silver bullet” in every discrimination or breach of contract action.
Next, employee handbook and contract strictures should be very clear; discussed with applicants; and acknowledged in writing by applicants.
Finally, employment decisions must be consistently enforced and always gender-neutral.

Michael J. Bemi is president & CEO of The National Catholic Risk Retention Group, Inc. (Lisle, IL) — a recognized leader in risk management. To learn more about available coverage — and to get valuable tools, facts and statistics — visit


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