Employees & abortion beliefs

Law.com recently reported on two employment cases involving terminations relating to the respective employee’s positions on abortion. They provide an interesting starting point for a discussion of employers’ right to terminate employees for personal beliefs.

In Curay-Cramer v. The Ursuline Academy of Wilmington, 2006 U.S. App. LEXIS 13956, (3rd. Cir. 2006) English teacher Michele Curay-Cramer sued Ursuline Academy, a private Wilmington, Delaware Catholic school, for employment discrimination under Title VII. The school fired Curay-Cramer after she signed her name to a newspaper advertisement supporting the legal right to an abortion on the 30th anniversary of the Supreme Court’s decision in Roe v. Wade. The school’s principal told Curay-Cramer that she was “deeply troubled by her public support of a position inimical to accepted Catholic doctrine.”

Curay-Cramer relied in part on Title VII’s opposition clause: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees. . . because he has opposed any practice made an unlawful employment practice by this subchapter . . ..” 42 U.S.C. ยง 2000e-3(a). She argued that the opposition clause “protects any employee who has had an abortion, who contemplates having an abortion, or who supports the rights of women who do so,” but the Third Circuit didn’t reach this argument in ruling for the employer. It held that Curay-Cramer failed to state a claim because her endorsement of the pro-choice advertisement was not a protected activity. “[P]ublic protests or expressions of belief” are not protected in themselves without connection to an employer’s alleged illegal employment practice.

This is what the advertisement said:

Thirty years ago today, the U.S. Supreme Court in Roe v. Wade guaranteed a woman’s right to make her own reproductive choices. That right is under attack. We, the undersigned individuals and organizations, reaffirm our commitment to protecting that right. We believe that each woman should be able to continue to make her own reproductive choices, guided by her conscience, ethical beliefs, medical advice and personal circumstances. We urge all Delawareans and elected officials at every level to be vigilant in the fight to ensure that women now and in the future have the right to choose.

The court stated that the advertisement can’t be construed to comment on the school’s alleged policy of termination the employment of women who have had, contemplated having, or support the right to have an abortion.

In the other (the article provides no citation) a Wisconsin federal district court upheld Wal-Mart’s termination of a Roman Catholic pharmacist who refused to fill birth control prescriptions. The pharmacist, Neil Noesen, argued that the termination violated his First Amendment right to free exercise of his religious beliefs. The court disagreed, holding that Wal-Mart reasonably accommodated Noesen’s belief by assigning other pharmacists to fill birth-control prescriptions and stating, according to the article, that saying Noesen “went too far by putting customers who called about birth control on hold indefinitely and by refusing to get service for those who showed up in person.”

(Shannon P. Duffy, 3rd Circuit Denies Fired Teacher’s Suit Over Support for Abortion Rights, The Legal Intelligencer, 06-08-2006; Ryan J. Foley, Federal Judge Dismisses Suit by Pharmacist Who Refused to Dispense Birth Control, The Associated Press, 06-05-2006)

2 Replies to “Employees & abortion beliefs”

  1. david.randall Post author

    This case raises issues at the intersection of the First Amendment’s speech and religion clauses and Title VII. The court’s decides the case on narrow grounds, its interpretation of Title VII’s opposition clause, which protects an employee from certain retaliatory firings. Had Curay-Cramer been fired for signing an ad protesting the Academy’s firing of a woman who had an abortion, then I think the court would have construed the opposition clause to protect her.

    Your comment addresses a broader question: could the Academy have terminated her employment because of her public support for a practice forbidden by Catholic doctrine? A religious institution has a strong interest in employees who support its beliefs. Do membership in the institution’s religion or adherence to its beliefs constitute bona fide occupational qualifications? Courts construe BFOQs narrowly, and I don’t think there is a clear answer to the question as I’ve posed it.

  2. JesseR

    If Curay-Cramer had an abortion herself, or independently joined a group like Planned Parenthood and her employer (the school) found out about such activities, would she still be protected? It seems like she would be protected because those activities are much more focused and specific than ‘public protests or expressions of belief.’ If the Catholic school employer specifically outlawed these activities in an employment contract would Curay-Cramer not be protected, and is it legal to create such a discriminatory contract?

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