Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, June 10, 2006

Case Law Development: Federal Third Circuit Court of Appeals Oks Firing of Teacher at Catholic School who Publicly Advocated Abortion Rights

The United States Court of Appeals for the Third Circuit ruled this week against a teacher who was fired from a private Catholic school after she had signed her name to a newspaper advertisement celebrating the 30th anniversary of Roe v. Wade. She had argued that signing the advertisement was conduct protected by 42 U.S.C. § 2000e-3(a) and that she was fired for conduct less egregious under Catholic doctrine than conduct of male employees who were treated less harshly. The lower court had ruled that a 1978 law that forbids employers from discriminating against employees who support abortion rights does not apply to disputes involving a religious school  The Court of Appeals agreed.

On the day the advertisement appeared, the woman was called into the office of the President of the private school and informed that the school was deeply troubled by her public support of a position inimical to accepted Catholic doctrine and was considering terminating her employment. A few days later she was fired. In her lawsuit, the woman claimed that a provision in Title VII protected her from being fired.  That provision reads that “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. § 2000e-3(a).2

The Third Circuit rejected her argument saying that the provision was aimed at preventing illegal employment practices but that “basic pro-choice advocacy does not constitute opposition to an illegal employment practice.” 

It said that “we are not aware of any court that has found public protests or expressions of belief to be protected conduct absent some perceptible connection to the employer’s alleged illegal employment practice.”  An example of protected conduct, according to the court, would be an employee’s appearance on the news magazine “60 Minutes” where the entire show was about allegations of sexual harassment and discrimination within the Bureau of Alcohol, Tobacco and Firearms. Hoffman v. Rubin, 193 F.3d 959, 963 (8th Cir. 1999). However, in this case, the court concluded that the advocacy was simply not connected to employment practices. It also dismissed her gender argument saying that “Congress has not clearly expressed an affirmative intention to apply Title VII to a claim, as asserted here, against a religious employer in the present context.” The Third Circuit Court of Appeals opinion, Curay-Cramer v. Ursuline Academy of Wilmington, may be found by clicking here (last visited June 10, 2006, reo).

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