Robin Shea, the blogger of one of the blogs in my blogroll, talked about the case for this week in a recent blog of hers. The case is Herx v. Diocese of Fort Wayne South Bend. Robin’s perspective is always great and fun to read, but I wanted to offer my own perspective as it is slightly different.

Here are the facts:

Plaintiff was hired in 2003 to teach junior high language arts at St. Vincent school in Fort Wayne, Indiana, and she served in that capacity until her termination in June 2011. At the time of hiring she signed a statement agreeing to conduct herself at all times professionally and personally in accordance with the episcopal teaching authority, law and governance of the church in the diocese. Charges for conduct in violation of the teaching of the church would be ultimately resolved exclusively by the Bishop. Further, there was an educational policy that said that a person had to have knowledge and respect for the Catholic faith and abide by its tenets. In 2008, the plaintiff learned that she suffered from a medical condition that causes infertility, and she and her husband began fertility treatments, which included artificial insemination and in vitro fertilization. The first treatment she underwent there wasn’t any issue, but when she informed the school that she was undergoing a second treatment (it isn’t unusual for an individual to go through multiple treatments before this works), the Monsignor told her that IVF violated church teaching (plaintiff was not aware of that previously), and that plaintiff would have been better off if she had not mentioned the treatment to anyone. At any rate, she was then terminated. Some other facts are important to know. They include that the plaintiff was not required to have any religious instruction or training to be a teacher at the school and had never held herself out as a priest or minister. She was considered by the principal to be a lay teacher. Further, the religion teachers for the diocese schools have different contracts than lay teachers and religion teachers are required to have religious education and training. Also, the diocese has never terminated any man or participation in IVF or any other infertility treatment. The plaintiff wound up suing on the grounds of sex and disability discrimination.

Court’s reasoning

The court threw out the disability discrimination claim the but kept the sex discrimination claim, and here is how they did it:

1. The ministerial exception didn’t apply because, as mentioned above, there was no requirement for teachers such as the plaintiff to have any religious instruction or training to teach secular subjects at the school. She had never held herself out as a priest or minister and was considered by the principal to be a lay teacher. Finally, religion teachers had a different contract man teachers of secular subjects, and religion teachers were required to have religious training.

2. Infertility is most definitely a disability.

3. The ADA provides a safe harbor for religious organizations so that a religious organization can require its employees to conform to an organization’s religious tenets.

4. All the evidence in the record indicated that the diocese acted because of the plaintiff’s choice of infertility treatment and not because of any animus against infertility.

5. Sex discrimination claim proceeds because a triable issue of fact was created as a result of the diocese never terminating any man for participating in IVF or any other infertility treatment. It is certainly true that the burden of IVF treatment falls upon the woman, but is also certainly true that the man participates in that treatment by providing the materiel.


1. Infertility is a disability under the ADA, assuming the woman is of childbearing age. Interesting question as to whether an age limit would be upon the man with respect to whether infertility would be a disability under the ADA.

2. How infertility is treated is a different kettle of fish than whether a disability exists.

3. If it is an employment matter and the person works for a religious organization, nothing wrong under the ADA for the employer to insist on that employee following the faith. It certainly helps if there is a contract and policies indicating as much.

4. If you are going to go after employees for not following the faith, make sure you treat men and women equally regardless of whether the burdens are at all the same between the sexes.