Catholic School Teacher's Support for Roe v. Wade, Not Protected Activity
by Michael Fox
The question of religious doctrine and employment practices are not an easy mixture for the courts, but the 3rd Circuit has handed down its second decision exploring those murky waters in the last month. The last opinion was unique in that it was authored by Judge Becker, but not published until after his death. See Ministerial Exemption Covers Organist, But Not Chaplain? Today's opinion, Curray-Cramer v. The Ursuline Academy (3rd Cir. 6/7/06) [pdf] is also unusual.
First, Judge Becker was on the panel that heard this case. Following his death, the decision was made by a quorum of the panel, meaning the other two judges were in agreement. What is surprising, particularly given the in depth opinion authored just two weeks earlier by Judge Becker on precisely the same subject, is that is not mentioned, not even once.
The facts were straight forward. Curray-Cramer a teacher of both English and religious classes at the Catholic institution was one of 600 individuals who signed their name in support of a women's right to choose published in a local newspaper on the 30th anniversary of Roe v. Wade. When told by the President of the Academy that it was "deeply troubled by her public support of a position inimical to accepted Catholic doctrine," Curray-Cramer, refused to recant and was ultimately fired.
The district court dismissed her claim of retaliation and also gender discrimination (she claimed that males had been treated less harshly for substantially similar conduct) on the grounds that determining these claims would "would raise serious constitutional questions and that Congress did not manifest a clear legislative intent that Title VII be applied in a case like Curay-Cramer's."
The appeals court agreed insofar as the gender discrimination claim was concerned, quoting the district court's analysis: Absent an allegation that a male employee publicly attacked the Church's position on abortion, evaluating the comparators would require
an analysis of Catholic doctrine to determine whether the decision to employ a teacher of a different religious background constitutes an affront to the Catholic faith and, if so, whether it is an affront of at least the same seriousness as the Plaintiff's repudiation of
Catholic doctrine on when life begins and the responsibility to preserve life in utero.
But it disagreed that such analysis was the appropriate rationale for dismissing her retaliation claim. There the Court found a more basic reason -- her signing the advertisement did not constitute protected activity. Finding that the ad failed to even mention "employment, employers, pregnancy discrimination, or even gender discrimination," the Court held that it failed to meet the test for opposition to an illegal employment practice which "must identify the employer and the practice "if not specifically, at least by context."
Although this opinion seems much more favorable to religious institutions as employers than Judge Becker's opinion in Petruska v. Gannon University
, the Court cautioned not to be too joyful:
We caution religious employers against over-reading the impact of our holding. It is by no means the case that all claims of gender discrimination against religious employers are impermissible.
An interesting time for a narrow, but important corner, of the Title VII world.