Blessing Discrimination: When Religious Employers Set the Rules

Picture this: You are a respected teacher at a local private school. You and your husband desperately want to have a child, and you are undergoing IVF treatment. You meet with your boss to request time off for the procedure. Soon thereafter, you are told that you have been fired because your employer believes that using IVF is morally wrong.

Seems absurd, right? But this is exactly what recently happened to Emily Herx, a Language Arts teacher at a private religious school in Indiana. The official reason for her dismissal: "improprieties related to church teachings or law."

And Ms. Herx is not alone -- there have been multiple cases around the country in recent years of female teachers at religious schools being fired for becoming pregnant out of wedlock (including Christa Dias, who was fired while five months pregnant) or for using IVF or artificial insemination.

How is this possible? After all, the Pregnancy Discrimination Act (which is part of Title VII, our federal employment discrimination law) makes clear that employers can't discriminate against a woman "on the basis of pregnancy, childbirth, or related medical conditions." In plain English, that means an employer can't refuse to hire a woman because she is pregnant or fire a woman because she is pregnant. Here's where it gets tricky: Religious employers play by a different set of rules.

First, Title VII carves out some exemptions for religious employers, allowing them to "prefer" employees of their own faith. While the average employer -- such as a clothing store or a financial firm -- can't refuse to hire someone because of his or her religious beliefs, religious employers can take a person's spiritual beliefs into account when hiring. This makes sense in many circumstances. It is logical that a Catholic school would want to hire someone who is Catholic to teach, for example, a catechism class. That said, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing Title VII, has made clear that the Title VII exemption is a very limited one; religious organizations can "discriminate" in hiring on the basis of religion, but not on (for example) the basis of race, color, sex or pregnancy.

Second, religious employers often have contractual "morality codes" for their employees. An employee's failure to adhere to such a morality code can form the basis for firing. Essentially, not becoming pregnant out of wedlock, or not using IVF, can become a contractual condition of employment.

For some employees, these wrinkles in the law mean that they are effectively bound by their boss's religious views, regardless of whether the employee shares those religious beliefs. Indeed, just last term we saw the Supreme Court accept Hobby Lobby's assertion that because the owners of Hobby Lobby (a national craft store chain) are religious, they do not have to provide insurance coverage for contraception to their employees -- regardless of whether or not the employees shared the owners' beliefs.

It is tempting, looking at the Herx and Hobby Lobby cases, to say, "Well, she chose to work for a religious employer. She has to play by their rules." The inherent assumption is that if an employee takes a job with a religious employer, she can be bound by the religious employer's conditions of employment -- whatever they are.

But is this an assumption the majority of Americans are really prepared to accept?

Imagine if that same morality code said "because the tenets of the church recognize God as the highest authority, no employee of the school is permitted to vote." Or "because the tenets of the Church prohibit intermingling of the races, we will only hire Caucasian employees." It is difficult to imagine that such conditions of employment could pass judicial scrutiny, let alone make it through the court of public opinion.

Why then, are we seemingly more willing to deem it acceptable for a female employee to have to choose between becoming pregnant or losing her job?

Are we really willing to accept that women can contract away the fundamental right to become pregnant (through whatever means), or continue a pregnancy? Do we accept that a woman working for Hobby Lobby does not have the same right to contraceptive insurance coverage as a woman working at a different craft store?

There are good reasons to recognize some exceptions in law for religious employers. But those exceptions need to be applied narrowly, and should not be used to bless pregnancy or sex discrimination. Pun intended.