I wonder if there is a recognized legal specialty in the area of unwed-pregnant-moms-and-religious-schools-discrimination law. If so, I think I will qualify very soon. Happy belated Mother's Day?

Not long ago, I wrote about the Archdiocese of Cincinnati, which terminated an unmarried pregnant teacher at a Catholic school -- not for "immoral" behavior -- although they did think her behavior was "immoral" -- but not in the way you would think -- she became pregnant through artificial insemination, which Catholic doctrine teaches is a sin. The issue in the case was whether the Archdiocese qualified for the ministerial exception.

This week, Bloomberg BNA reported a decision from the U.S. Court of Appeals for the Eleventh Circuit, which hears appeals from courts in Alabama, Florida, and Georgia, involving a Christian (presumably Protestant) school in Florida that terminated a teacher who became pregnant the old-fashioned way. The teacher was unmarried when she conceived, but she married the father within a month. By the time she disclosed her pregnancy to the school, she had been married for several months.

(Editorial comment: It seems pretty harsh to terminate her for "immorality" when she married the guy. But what do I know?)

Anyway, she sued for pregnancy discrimination, and the school moved for summary judgment based on two grounds:

1) The ministerial exception applied, meaning that the court should not interfere at all in the school's personnel decisions, and

2) The plaintiff was unable to show any similarly situated non-pregnant employees who were treated differently.

The trial court, which had ruled before the Supreme Court's decision in Hosanna-Tabor, found that the ministerial exception did not apply. Although we don't know what kind of teacher this plaintiff was, the school implicitly admitted on appeal that she was not a "minister."*

*If I may digress: The majority opinion in Hosanna-Tabor did not provide any extended discussion of what constitutes a "minister." If you recall, the teacher in that case was actually called a "minister," was ordained, and taught religion and led worship services, so her situation was clear-cut. (A concurring opinion by Justices Alito and Kagan provided an excellent discussion of who else might be a "minister," but their opinion is not binding.) The court in the Catholic school case from Ohio found that the ministerial exception did not apply, at least not in the early stages of the litigation, because the plaintiff was a technology/computer teacher with no religious function.

Back to our case: the trial court granted summary judgment to the school on the second ground (no evidence of pregnancy discrimination). The plaintiff appealed, and the 11th Circuit sent the case back for a jury trial.

The 11th Circuit decision is short. The ministerial exception was a non-issue, the Court said, because the school had not done enough to preserve that issue for appeal. (Don't ask!)

On the merits, the 11th Circuit found that the waters were muddy enough that a jury should decide whether the teacher was terminated for "immoral" behavior (which would be legal, because this was a religious school that taught that premarital sex was a sin) or whether she was terminated because the school did not want to have to deal with her maternity leave (which could be pregnancy discrimination and would have nothing to do with religious doctrine).

According to the teacher, when she announced her pregnancy to the administrator, he threw his head back and said, "We feared something like this would happen." A fairly ambiguous statement. Maybe he meant, "We knew you were spending too much time with that Romeo (whom you later married) and were going to become pregnant out of wedlock, which is a sin." In which case, the school might have had a defense.

Except for the fact that the comment was allegedly made before the administrator knew that the child was conceived out of wedlock.

And, according to the Court, this comment could also have meant, "Those darned women! Here we go again with another maternity leave! From now on, we hire no female teachers unless they can produce a doctor's note certifying that they've had their tubes tied or have been through the change!" If that's what the administrator meant, the school had committed pregnancy discrimination and was not acting out of a concern for the morality of the teacher's behavior.

Acording to the teacher, the administrator also told her she'd have to take the entire school year off because it would be too hard to find a substitute for a partial year, and he allegedly said that the time off and her "immorality" were both problems from the school's standpoint. 

The Court also said that the administrator had testified that all would have been forgiven if the teacher had just acknowledged her sin and repented . . . but she never did. Again, this would tend to support a finding that the termination was for religious reasons. However, the teacher alleged she had acknowledged and repented. This creates what is known as (CAUTION: legalese alert) "a genuine issue of material fact," which means that the case cannot be dismissed on summary judgment and must be tried by a jury, who will decide who's telling the truth.

IF YOU'LL PARDON THE EXPRESSION . . . THE MORAL OF THE STORY

I could be wrong, but I don't think the courts like seeing pregnant teachers fired for being "immoral." To an outsider it looks like the religious employers are punishing only women -- and, even worse, only pregnant women -- because they're the ones who "get caught." Accordingly, even though the courts are required to apply the ministerial exception in appropriate situations, it's my impression that they look hard for reasons to find that it doesn't apply.

Accordingly, here are some suggestions for religious employers who want to follow their religious tenets without being sued all the time:

1) Seriously consider adopting a "ministerial" policy. Designate which positions you consider to be "ministerial" and which ones you do not. Minister, priest, rabbi, or imam are easy calls. In a school setting, designate school administrators, and all teachers who teach religion or lead prayer or worship services. You may want to include your choir director, or you may prefer just to have a darned good musician no matter how he or she carries on outside of work. Decide that in advance. Do not include positions like janitor, groundskeeper, IT guy (or gal), or gravedigger. Do not try to get around this by calling your janitor "Minister of Sanitation" or your IT guy (or gal) "Minister of Networks." The courts were not born yesterday. They will see right through that.

2) Have separate written codes of conduct for "ministerial" and "non-ministerial" positions. Yes, I am advocating a double standard. You should be used to double standards now that the ADA's reasonable accommodation requirements have been in place for, oh, I don't know, the past 20 years!!! Seriously, a written policy like this will make it much easier for you to assert the "ministerial exception" when you think it should apply.

And make sure your rules for ministerial employees are spelled out precisely. An ordained minister, or a priest, rabbi, or imam may know all the rules. Let us hope so, anyway. But a choir director may not. One of the problems for the employer in the Ohio pregnancy case was that there was no evidence that the teacher, a non-Catholic, even knew that artificial insemination was considered a sin. Write your rules with your non-ordained ministerial employees in mind so you are sure that everyone knows the expectations. Consider it a teaching opportunity!

3) Believe it or not, have the courage of your convictions. If your religious beliefs really teach that premarital sex is a sin, embrace that. Don't try to "soften" a "morals" termination by claiming, for example, that you were really just afraid that you wouldn't be able to cover for the employee's absence from work. If you terminate for a "strictly religious" reason, you are much likelier to be able to take advantage of the ministerial exception and be upheld. If you weasel because you're afraid people will think you're being "judgmental," the court will think you're just like everybody else and will hold you to the same standards that apply to everybody else.

4) That said, if you want to take action against "immoral" employees, don't just fire all the unmarried or "belatedly married" pregnant women. If you know that other employees (male or female) are cohabiting, having extramarital affairs, cheating on their income taxes, eating meat on Friday*, etc., etc., then take action against those employees, too. (Also, with your unmarried pregnant employees, never forget that it takes two to tango. She didn't get pregnant all by herself, ya know.)

*I tease here -- this is not a rule for Catholics any more except during Lent. Probably not much of a ground for termination based on "immorality," even if it were still the rule.

5) Make sure that you are generally welcoming and accommodating to pregnant and childbearing employees, not whining about absences due to morning sickness, or maternity leaves, or the like. This will help you prove that the "sin" was the reason for the termination rather than the "pregnancy."

Speaking of moms, I was honored to be a part of the May Employment Law Blog Carnival: Mother's Day Edition, hosted by plaintiff's employment attorney Donna Ballmer. Donna has a collection of excellent blog posts covering a cornucopia of topics (if you'll pardon my mix of holiday metaphors), including the EEOC's new guidance on criminal background checks, social media, and what to do if your employee flips you the bird (I kid you not!). Please be sure to check it out.