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Seventh Circuit Ruling Allows Catholic Teacher's In Vitro Fertilization Suit to Go Forward - Appellate Practice News

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Appellate Practice News

Posted on: Dec 9, 2014

This article was originally posted on the blog of Plews Shadley Racher & Braun LLP on Dec. 2, 2014. You can view it here or view it below.

By Josh S. Tatum, Plews Shadley Racher & Braun LLP

The Roman Catholic Diocese of Fort Wayne–South Bend’s appeal from an order denying summary judgment in a lawsuit brought by a former teacher suing the diocese for firing her because she became pregnant through in vitro fertilization was dismissed by a decision. In the unanimous decision written by Judge Diane S. Sykes, the Seventh Circuit held that the appeal was filed too early because the summary-judgment order was not final.

Emily Herx was informed by the pastor of St. Vincent de Paul Catholic Church, which was where her school was located, that in vitro fertilization contradicts Catholic teaching. At about that time, she was undergoing in vitro fertilization procedures. Shortly after that conversation, the diocese informed Herx that her contract would not be renewed because she had undergone in vitro fertilization.

Herx sued under Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act (42 U.S.C. § 2000e-2) and the Americans with Disabilities Act, claiming that the church had discriminated against her on the basis of sex and disability.

The church moved for summary judgment on both claims, and the United States District Court for the Northern District of Indiana granted on the A.D.A. claim and denied summary judgment on the sex-discrimination claim. The A.D.A. claim has not yet reached the Seventh Circuit. The church pointed to Title VII’s language exempting religious organizations at 42 U.S.C. § 2000e-1(a) and religiously affiliated schools at 42 U.S.C. § 2000e-2(e)(2).

The case has attracted a great deal of national attention, in part because it raises the important question of whether Title VII’s exemptions only apply to religious discrimination or other types of employment discrimination as well. The diocese’s constitutional argument that the First Amendment prohibits a jury from inquiring into the religious teachings of the Catholic Church, which the church argues would be required should the case go to trial. Similarly, the church argues that the First Amendment doctrine known as the ministerial exemption should protect it from the lawsuit, but the district court concluded this was inapplicable because the teacher plays no role in religious education.The church also argued that it would discharge any employee for violating Catholic teaching, whether the employee was male or female, so it couldn’t be said to discriminate against Herx because she is a woman.

None of these arguments were before the Seventh Circuit because Herx moved to dismiss the appeal for lack of jurisdiction. She argued that because the district court could reconsider its summary-judgment order, the appellate court did yet have jurisdiction over the case. The diocese pointed to the collateral-order doctrine, which provides an exception to this rule for nonfinal orders that are too important and too independent of the case to require a final decision.

The court distinguished the appeal from one involving a defense of immunity from any trial. Some categories of cases that call for review before a final decision include separation of powers, immunity of government officials, state sovereignty, and mitigating governmental advantage over individuals. The Seventh Circuit concluded that the case did not implicate this kind of interest but instead private parties, “so delaying appellate review until final judgment does not ‘imperil a substantial public interest.’” Additionally, the church failed to show it was exempted from a trial as opposed to an ordinary defense to liability.

The Seventh Circuit expressly reserved judgment on the merits of Herx’s suit.

This article was written by Josh S. Tatum of Plews Shadley Racher & Braun LLP. If you would like to submit content or write an article for the Appellate Practice Section page, please email Mary Kay Price at


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