The news abounds that England is expecting a new member to the royal family, and that the Duchess of Cambridge was recently hospitalized for hyperemesis gravidarum, a brutal form of excessive nausea related to pregnancy that can often require medication, IV fluids and nutritional supplement to combat. As royalty, Kate will get the best of care. For everyday women, however, even standard symptoms, never mind complications, aren’t treated with nearly as much deference, especially not if you are a woman in the workplace.
Bathroom breaks for pregnant women are a privilege, not a right.
So claims National Processing of America, a call center being sued for unlawful termination after firing a pregnant employee, whom they believed took too many trips away from her desk to either vomit or just urinate. Their solution to her needing to run to the lavatory to be sick? She was provided with her own wastebasket to keep at her desk. So, besides being expected to vomit in front of her coworkers, apparently she and they were all expected to cope with the post-puke smell as well.
Nausea and the need to frequently urinate are pretty common when pregnant, and the employee had a high risk pregnancy as well. The company, however, was less than sympathetic.
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On another occasion, defendant’s manager told plaintiff that defendant did not ‘pay [her] to pee,’ objecting to plaintiff’s necessity to use the bathroom when plaintiff experienced nausea or dizziness due to her pregnancy conditions. Defendant’s manager claimed to plaintiff it was not ‘fair to other employees’ for plaintiff to take excessive bathroom breaks. When plaintiff complained about being told that defendant did not ‘pay [her] to pee,’ defendant characterized plaintiff’s need to take bathroom breaks due to the conditions of her pregnancy as being ‘constantly out of her desk.
Few women have the ability to take leave from work when pregnancy becomes debilitating. But as long as companies are hostile to even the most basic needs of pregnant women, we can not achieve equality in the workplace. Morning sickness in some form is common. Frequent urination occurs in every pregnancy.
Women are in the workforce. Women get pregnant. Companies simply have to find a way to cope.
The Archdiocese of Cincinnati argued that although Christa Dias was hired to teach computer classes and is not Catholic, she was still considered a minister of the Catholic Church and therefore could be fired for not adhering to Catholic teachings about IVF. But Dias won in court.
UPDATE, June 18, 11:30 a.m.: On June 17, the Archdiocese of Cincinnati filed a Notice of Appeal. The defendants’ appeal will likely focus on the determination that the “ministerial exception” does not apply because Dias is not a minister.
Dias won her lawsuit on the basis of the pregnancy discrimination claims, not the contract claim; she was not permitted to argue her contract claims because the court held that “discovery also yielded facts that Plaintiff admitted she was in a long-term homosexual relationship during her employment, and that she kept such fact secret from Defendants as she knew Defendants would view her relationship as a violation of the morals clause. Under such circumstances, the Court finds Plaintiff, with ‘unclean hands,’ cannot invoke a cause of action based on a contract she knew she was breaching.”
When Christa Dias became pregnant, she was a computer teacher for two schools in the Archdiocese of Cincinnati, Holy Family and St. Lawrence. She shared the good news with her principal when she was ready to plan her maternity leave, at five and a half months. Her principal congratulated her, but other school and church officials did not think the impending birth of this particular child was cause for celebration, because Dias is not married. She was fired three days later.
The first reason given for Dias’ termination was that she was pregnant and unmarried. Federal law prohibits firing a woman for being pregnant, but in these kinds of cases, Catholic schools sometimes get away with firing people for violating a prohibition on premarital sex that applies to men and women alike, pregnant or not. The pregnancy is the evidence, not the offense itself, so schools argue it isn’t pregnancy discrimination when they fire a pregnant woman. Dias’ pregnancy, however, was not the result of premarital sex. When she explained she had undergone in vitro fertilization (IVF) to her employers, she learned that was grounds for termination as well.
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Dias sued for pregnancy discrimination and breach of contract. Since she brought suit, the daughter the archdiocese contends never should have been born has reached the age of two, and the Supreme Court decided an important case concerning the rights of religious organizations to discriminate against some employees. A jury awarded Dias more than $170,000 in back pay and punitive damages on June 3. While that is cause for some optimism, the arguments the archdiocese made in its attempt to keep the case out of court are a distressing example of the larger trend in “religious freedom” claims being made to deprive employees of the protections of the law. And the archdiocese is likely to appeal.
The archdiocese and schools argued Dias’ firing was not the result of pregnancy discrimination, but rather Dias’ violations of her employment contract, which required she “comply with and act consistently in accordance with the stated philosophy and teachings of the Roman Catholic Church” by having a child through IVF. But the archdiocese also made the more audacious argument that the religion clauses of the First Amendment protect its right to discriminate if it so chooses and bar the secular court from looking into Dias’ contract claims at all.
The “Ministerial Exception” Defense: Protestant Computer Teachers Are Ministers of the Catholic Church
The archdiocese claimed it was not beholden to anti-discrimination laws on the basis of a constitutionally required exception recognized by last year’s Supreme Court decision in Hosanna-Tabor v. EEOC. In that case, a teacher and “commissioned minister” at a Lutheran school alleged she was fired in violation of the Americans With Disabilities Act. The Court held that the First Amendment bars the enforcement of anti-discrimination laws when a religious organization fires a minister. This “ministerial exception” had been recognized by lower courts as a protection of the rights of a church to choose its ministers and members without government interference. The question then became whether the teacher in question was a “minister.” The Court declined to provide a definition of “minister” but looked to the nature of the plaintiff’s position as a “called” teacher. Though she taught mostly secular subjects, her position required extensive religious training, entailed teaching religion and leading her students in prayer, and included benefits not granted to “lay” teachers. The Court concluded unanimously that she was a minister.
The ministerial exception is problematic, but justifiable insofar as individuals have reason to know they are considered ministers and have consented to religious control. Hosanna-Tabor protects the rights of religious groups to choose “who will preach their beliefs, teach their faith and carry out their mission.” If they don’t want ministers who are disabled, or Black, or women, they are free to discriminate against them.
Justice Clarence Thomas, per his concurrence, would have the ministerial exception apply to anyone an employer claims in good faith is a minister, seemingly without regard to whether an employee knew his employer considered him a minister. Justices Samuel Alito and Elena Kagan believe it “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”
The Archdiocese of Cincinnati, however, argued that Dias is a minister despite the fact that the schools hired her to teach computers, with full knowledge that she is not even Catholic. It claimed that Dias is a minister of the Catholic Church because she is a “role model.” On this theory, every employee of a Catholic school is a minister. So the school would enjoy not just their existing right to decide, for example, they no longer want any Hispanic nuns teaching religion, but also the right to fire all Hispanic receptionists, crossing guards, or math teachers in violation of anti-discrimination law. Anyone who works for them is a minister, and ministers can be fired for any reason.
That is a claim to be outside the law. It is an example of the move from the concept of church autonomy—non-interference into the affairs of people who voluntarily join a religious group and wish to govern themselves—to claims for religious power that trump laws protecting outsiders and dissenters.
The court rejected the ministerial exception argument finding that Dias, having no religious duties, was not a minister and is protected from discrimination by the law. The archdiocese continued to make that argument, claiming new evidence that she performed ministerial functions. The archdiocese has also amended its standard employee contract since Dias signed it, explicitly characterizing school employees as “Ministerial.” This change will alert prospective employees who’ve read Hosanna-Tabor to the archdiocese’s intention to deny them the protection of anti-discrimination laws, but will be of limited use to any primary school teachers who have not found the time to keep up with the latest in the Supreme Court establishment jurisprudence.
The Lack of Jurisdiction Argument: Interpreting the Employment Contract Would Entangle the Secular Court in Religion
The archdiocese made a further claim to be outside the law in arguing the case must be dismissed because, even if Dias wasn’t a minister, the court could not interpret her contract since doing so would unconstitutionally entangle the court in religious matters. (The lawsuits challenging the contraceptive coverage regulation include similar entanglement arguments.) The argument basically goes like this: The contract requires compliance with Catholic teaching. The courts can’t say what Catholic teaching is. Only we can say what Catholic teaching is, so only we can say if the contract was violated.
Here’s the thing: A contract is an exchange of promises enforceable at law. If the archdiocese reserved the right to fire Dias at any time for any reason, un-reviewable by the courts, it didn’t actually make her a promise to employ her for any period of time. In Hosanna-Tabor, the Court explicitly declined to address whether ministers could sue their employers for reasons other than discrimination, such as breach of contract. The archdiocese’s entanglement argument here isn’t just an attempt to extend Hosanna-Tabor to deprive ministers of contract protections, but to deprive non-ministers of any remedy at law as well.
The court rejected the archdiocese’s entanglement argument, holding that a determination as to whether there was a “meeting of the minds” that agreeing to comply with church teaching was agreeing not to have a child through artificial insemination required a factual finding by a jury.
However, the archdiocese did have a point about the difficulty of determining whether any particular action breaches an agreement to “comply with Catholic teaching.” Dias didn’t know the Catholic Church opposed IVF and thought she was only agreeing to try “to be a Christian woman and follow the Bible.”
The archdiocese argued she agreed to something very different. To prove that Catholic teaching forbids IVF, the archdiocese attached as exhibits to one brief paragraphs 2,373 to 2,379 of the Catechism of the Catholic Church and a 23-page 1987 Vatican document on biomedical issues. So the archdiocese essentially claimed that through the term “Catholic teaching,” Dias’ employment contract incorporates each of the over 600 pages of the Catechism, every papal encyclical, a statement by the Committee on the Doctrine of the Faith, and who knows what else.
That can’t be a reasonable interpretation of a contract. And even the new version of the employee contract on the archdiocese’s website, now explicitly incorporating and linking to the Catechism, won’t solve the problem. Even for an employee with an encyclopedic knowledge of the Catholic Catechism, whether or not a particular action complies with Catholic teaching is not necessarily black and white. Understanding, explaining, debating Catholic doctrine is something theologians dedicate whole careers to. And checking the Catechism website won’t give you answers that require an exercise of individual conscience.
The point of a contract is that you can rely on the promises made. A contract that leaves what is permissible up to the ad hoc theological determinations of Human Resources regarding a religion you don’t practice does not provide certainty on which one can rely. The archdiocese itself acknowledges that secular courts are not competent to decide what does and does not violate Catholic teaching, so how in the world is Protestant Christa Dias supposed to?
Examples of fireable offenses from real life and lawsuits include: advocating for the ordination of women, refusing to recant your support for gay marriage, admitting disagreement with Church dogma to your principal in private, being pregnant a suspiciously short time after your wedding, declining to document for your boss what your pastor thinks of you, being overheard discussing your wedding plans, and including the name of your partner of the same sex in your mother’s obituary. (It isn’t the basis of Dias’ discrimination claim, but she is gay and lives with her partner, which the archdiocese predictably argued undermines her credibility.)
Also, consider this: If you run into your boss at the drugstore with a box of condoms in your hands, you are going to have a pretty tough time arguing you didn’t know you were violating Catholic teaching in light of the bishops ongoing, widely-reported scorched earth campaign against the contraceptive coverage mandate in the Affordable Care Act.
Other, less common violations of Catholic teaching might include advocating for the Paul Ryan budget, ending treatment of a family member in a vegetative state, driving a friend to get contraception, having a vasectomy, openly supporting the death penalty, opposing immigration reform, criticizing the Vatican’s treatment of U.S. nuns, and skipping mass. Something that would definitely not be in keeping with Catholic teaching would be attending a mosque or a synagogue on a regular basis and denying the divinity of Jesus Christ.
But even the most orthodox of Catholics are sinners. If every violation of Catholic teaching can cost you your job, you can’t rely on having one. If claims like those made by the archdiocese are accepted in other cases, then it is essentially impossible to enter into a contract with a religious organization; you can only be an at-will employee. And it isn’t only in the employment context that the trend in religious freedom claims suggests one can’t rely on the representations of a Catholic-affiliated organization.
Claims that whatever a Catholic-affiliated organization does is what you should have expected, that its contracts can’t be adjudicated, and its religious freedoms trump any objective by the government add up to a larger vision of the Catholic-affiliated organization as a black box, unaccountable to individuals and unregulated by the government.
Telling people who don’t like that to stay away from the black box isn’t enough. These organizations are too dominant in their fields (education, social services, health care), involved in the public sphere, and entrusted with taxpayer funds to just avoid. Certainly, as critics hear regularly, “the Catholic Church is not a democracy.” Indeed, it is an anti-democratic hierarchy that rejects the equality norms of the United States, but it and its affiliates are operating within a democracy with a system of laws. That those laws protect people like Christa Dias and entitle her to make her case to a jury is not a violation of religious freedom.
Hyperemesis is no stroll in the palace park. Kate may be a princess, but she is also human. Women of every race, class, and income level face risks in pregnancy and put their bodies on the line every time they get pregnant. The only differences between the princess and the pauper are that one has proper food, nutrition, and care and the other has none.
As you might imagine, virtually every news outlet still located on planet Earth has covered the fact that Princess Catherine, Duchess of Cambridge, is officially pregnant. A feeding frenzy of press coverage on the royal pregnancy has been virtually guaranteed since the day she and Prince William got engaged.
But unlike those princesses in the fairy tales, Princess Kate’s pregnancy is so far neither easy nor uneventful. An announcement from the Royal Family stated that she was hospitalized with hyperemesis gravidarum, which the American Pregnancy Association explains as “a condition characterized by severe nausea, vomiting, weight loss, and electrolyte disturbance. Mild cases are treated with dietary changes, rest and antacids. More severe cases often require a stay in the hospital so that the mother can receive fluid and nutrition through an intravenous line (IV).”
Major news organizations are not widely known for their effective treatment of women’s health issues, and so it’s not been surprising to me that many have reported Kate is suffering with a “bad case of morning sickness.” Others have been downright rude and ignorant. Gawker’s Caity Weaver, for example, wrote that “hyperemesis gravidarum [is] what they call regular old morning sickness when you are a princess.”
I beg to differ.
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Unless I am missing something, I am no princess; otherwise, my butler has been missing in action for quite a while and my diamond tiaras are nowhere to be found. I suffered from hyperemesis in both of my pregnancies. I assure you it has no relationship to the quaint notion of saltine-crackers-and-ginger ale morning sickness we all think about if and when we think about morning sickness at all. Really, it doesn’t.
From the very day of the six-week mark in my first pregnancy, I began to throw up. I never stopped. I vomited until there was nothing left to throw up, and then I would keep vomiting, resulting in sustained convulsing dry heaves. And this was day two. If I took a sip of water, it came right back up. If I tried to drink plain broth, same thing. Pregnancy vitamins? No way. If you have ever had a really, really bad case of food poisoning and gotten to the point where you were begging God just to let you die, you have a sense of what I am talking about here. But food poisoning lasts at most a few days. Try nine months like that.
In my case, within a couple of days of my “hyperemetic episode,” I was unable to walk around; when the dry-heave convulsing became literally painful, I was taken to the hospital for intravenous (IV) fluids. In that first pregnancy, I spent a cumulative total of five months in the hospital or at home in bed on IVs, with home health aides, catheters, nausea medicine, and the rest, unable to eat enough to sustain myself and tethered to IVs. I lost more than 30 pounds. (That made for great jokes *after* the baby was born, about how I never realized that all I needed to do to lose weight was to get pregnant.)
I was virtually unable to work for the better part of five months of my pregnancy, because I became so weak that walking up and down stairs—and some days lifting my head off the pillow at all—was difficult and made me excruciatingly tired and dizzy. When I did go places, we brought my IV bag. And the IVs only worked to keep me hydrated as long as I had them in; take out that IV, and I would go back into convulsive vomiting and lapse back into serious dehydration. I was six months pregnant and still on IVs before I could sip chicken broth or drink what oddly enough I most craved, Diet Pepsi, and hope to keep some down. When I expressed (constantly) to my doctor my concern for the baby, she reassured me: “Don’t worry. You came into this healthy and well-nourished. Its not the baby that is in danger right now, it is you, because the baby is feeding off all your reserves and you have nothing with which to replenish yourself.”
My daughter arrived as a healthy, alert 8-plus-pound baby. And, much to my obstetrician’s shock, I went through it all over again with my son.
Like Kate, I was lucky. I had a job I could keep; disability insurance; health insurance; and help from my then-husband, who had to take off work to change the intravenous fluids and take care of me. I had contraception to plan my pregnancies, great medical care, a wonderful Ob-Gyn, and the reassurance, even when I did not believe it, that my babies would be okay. Kate may have it worse or better than I did medically, but either way she is suffering from a potentially serious complication of pregnancy. And, what is more, she is going to be expected to “perform” for the cameras some time very soon, putting more pressure on her as a woman dealing with a serious condition in early pregnancy. The very thought of mixing cameras with hyperemesis makes me sick all over again.
The treatment of Kate’s condition by at least some media outlets as just another bout of morning sickness is at least in part a failure to really understand and report on pregnancy as anything other than a fantastic event, a tug of war between “choice” and anti-choice movements, a struggle to *get* pregnant, or a major social drama (think teen pregnancy).
Missing is an examination of just how dangerous pregnancy can be, and how dependent the lives of pregnant women are on access to good nutrition, good medical care, and good support systems. This same reality was illustrated in a different but tragic way in the case of Savita Halappanavar, who died last month in an Irish hospital because doctors refused to terminate her pregnancy at 17 weeks even though it was clear she was miscarrying and even after it became clear she could not survive unless in fact they terminated the pregnancy, quickly. They let her die.
But it is a reality played out every day in places throughout the world in which papparazzi have no interest. More than 350,000 women die each year from complications of pregnancy and unsafe abortion. The malnutrition, anemia, and other health conditions rampant among pregnant women worldwide are contributing factors. Cultural, economic, and social discrimination mean that both women and girls are exceptionally vulnerable to poverty and are less likely than men and boys to have adequate food intake. Iron deficiency anemia, for example, contributes to 20 percent of all maternal deaths worldwide. One study conducted by UNICEF in Samburu, Kenya revealed that 60 percent of the pregnant women were malnourished, and even so, they still gave up shares of their food to make sure they could give more to their children.
Data show that HIV-positive pregnant women are more likely to be malnourished than their HIV-negative counterparts, a serious problem in regions like Africa where women make up the majority of those infected with HIV. Lack of emergency obstetric care is one of the leading factors in high rates of maternal death and illness throughout Africa, Asia, and Latin America. And in regions where under-nourishment in pregnant women is widespread, infants are far more likely to be born at low birth weight, a risk factor for neonatal deaths, learning disabilities, mental, retardation, poor health, blindness and premature death in infants.
So if I were a woman with hyperemesis in, say, rural Kenya, Nigeria, or Uganda, the outlook for me and my baby would have been dramatically different than it was in fact for the middle class United States me, or than it is for Kate (barring, of course, any other complications with her pregnancy). There would have been no IV fluids, little rest, and likely no extra resources to assist me. I might have died, along with my baby, and even if I had survived, my daughter would have a higher risk of dying and far poorer prospects in life.
Kate may be a princess, but she is also human. And as human beings, women of every race, class, and income level face many risks in pregnancy. What Kate—and Savita before her—have reminded us is that women put their bodies on the line every time they get pregnant. I wish Kate all the best. But the only differences between the princess and the pauper in this case are that one has proper food, nutrition, and care and the other has none.