Waters on Hosanna-Tabor’s Potential Impact on Reproductive Rights

Jessica L. Waters (American University School of Public Affairs) has posted Testing Hosanna-Tabor: The Implications for Pregnancy Discrimination Claims and Employees’ Reproductive Rights. The abstract follows.

In April 2009 Jaretta Hamilton, a married elementary school teacher, was fired after her employer school learned that Hamilton became pregnant prior to her wedding. In October 2010 Christa Dias, an unmarried technology coordinator for two schools, was fired after her employer learned Dias was pregnant via artificial insemination. In 2011, Emily Herx, a married Language Arts teacher who was struggling with infertility, was fired after the school where she had been teaching for seven years learned that Herx was undergoing in vitro fertilization treatments. In the fall of 2011, Cathy Samford, an engaged middle school science teacher and volleyball coach, was fired after her employer discovered Samford’s pregnancy.

Can the employer schools of these four women legally fire them for attempting to become pregnant or actually becoming pregnant? Because the schools in question are religiously-affiliated schools, in the wake of Hosanna-Tabor Evangelical Lutheran Church v. EEOC the answer may be yes.

It is in Hosanna-Tabor’s wake, which held that the “ministerial exception” bars most employment discrimination suits brought by certain employees of religious organizations, and the fundamental questions it raises regarding how the law defines and protects both religious employers and their employees, that I begin to explore Hosanna-Tabor’s implications for employees’ rights under existing employment discrimination laws, and in particular for Title VII pregnancy discrimination claims brought by employees of religiously-affiliated entities.

Part I summarizes the Hosanna-Tabor litigation and the Supreme Court’s landmark decision. Part II briefly explains Title VII’s statutory exemption for religious employers, and provides additional background on the scope of the court-created ministerial exception in the wake of Hosanna-Tabor.

Part II then explores two Title VII pregnancy discrimination cases currently winding their way through the federal courts — Hamilton v Southland Christian Schools and Herx v. St. Vincent DePaul School — that demonstrate Hosanna’s potential impact on such claims. In Hamilton v. Southland Christian Schools, Jaretta Hamilton was fired after informing her non-denominational Christian school employer that she became pregnant prior to her marriage. The question of whether Hamilton fell under Hosanna’s recently announced ministerial exception — thus probably barring her suit — was a central focus of oral argument, and highlights Hosanna’s potential impact on gender and pregnancy discrimination claims. Likewise, in the recently filed Herx v. St. Vincent De Paul School, Emily Herx, a married woman struggling with infertility, was fired after her Catholic School employer discovered that she was undergoing in vitro fertilization treatments. Herx has filed suit in federal court alleging both pregnancy and disability discrimination; again, a central question in that case is likely to be whether the school can successfully assert that Herx is a “minister,” thus precluding the school’s liability under the ministerial exception.

Finally, Part III discusses how Hosanna-Tabor might affect these and other pregnancy discrimination cases and addresses the complexities raised by pregnancy discrimination suits brought by employees of religiously-affiliated employers. More broadly, Part III places Hosanna-Tabor in the context of nationwide questions in other areas of law regarding how to define to religious employers’ and employees’ rights — including such questions raised under the Patient Protection and Affordable Care Act — and argues that the emerging definitions from such debates are on an untenable collision course.

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