Emily Herx said all she and her husband, Brian, wanted was more children.
The Herxs found out that Emily had a health condition that made her infertile and that in order to get pregnant, she was going to have to use fertility treatments.
Kathlee Delaney, the Herxs' lawyer, said Emily told the principal at her school , St. Vincent DePaul, what she was considering.
“In 2008, Mrs. Herx told her principal she was considering in vitro. The principal told her she would quote, ‘pray for her.’”
Brian Herx said at no time did anyone with the school question or raise concern about the couple’s situation.
“If anyone from the administration had come and told her there was an issue, we would have been able to make an educated decision and we were never given that opportunity.”
After another teacher complained to the Fort Wayne Diocese, Herx was let go. The diocese said it has clear policies in its teacher contracts. It said the teachers must not only have knowledge and respect for the Catholic faith, but must also, “serve as moral exemplars.”
“Citizens have a right of privacy. It's not specifically mentioned in the constitution but it's been interpreted in the constitution,“ said Jennifer Drobac, professor at the IU McKinney School of Law.
In the lawsuit, Herx said she was discriminated against because of her gender and because of her disability, infertility. She also claimed there are other teachers who have contradicted Catholic doctorine: receiving surgeries to affect their fertility, using contraceptives, citing that even the school’s principal is divorced. Despite those discrepencies, none of those staff were ever punished or fired.
Professor Drobac is an expert on workplace discrimination and sexual harassment law. She is currently writing a chapter in a law textbook about this very issue. Drobac said the nature of this case, procreation, makes it an uphill fight for the Catholic Church.
“It's a tough argument to say you can't keep your job because you want to add to your family. That's a tough argument and it's not going to play well in front of a jury.”
This case comes on the heels of landmark Supreme Court case Hosanna-Tabor. In that case, the SCOTUS affirms that religious groups can choose their ministers. It was a case of a faith-based school firing an employee.
The difference Drobac said is that in the Hosanna-Tabor case, the employee was a minster. She was a person who taught religion, had taken courses on religion and had the title of minister.
Drobac notes that Herx was a language arts and literature teacher with no religious teaching duties, who had been given no religion instruction of her own. Drobac said now the courts need to define how far the definition of minster applies.
“Part of what we need to sort out here is whether or not Emily Herx is a minister.”
As for Herx, she said finding out about the infertility was hard enough.
“I can't even explain how difficult and traumatic it is as a woman. All you want is a child and you think that's what you're supposed to do and that's what you want to do. And to not be able to do that.”
Her husband vows to support his wife.
“I'm standing behind her in everything she's going through.”