A lawsuit initiated by a teacher who was fired after signing a pro-choice advertisement has pitted the right of a private school to determine who it wants on staff against the plaintiff's right to speak out in favor of abortion rights.
In a complaint filed in the U.S. District Court in Wilmington on Nov. 7, plaintiff Michele Curay-Cramer alleged that her former employer, The Ursuline Academy of Wilmington, Delaware Inc., and the Catholic Diocese of Wilmington violated Title VII of the Civil Rights Act and the Pregnancy Discrimination Act by terminating her employment.
The legal dispute stems from a full-page ad that ran in the Jan. 22, 2003, issue of The News Journal to coincide with the 30th anniversary of the U.S. Supreme Court's decision in Roe v. Wade. The ad, which was signed by more than 600 people, including the plaintiff and Delaware Gov. Ruth Ann Minner, asserted that a woman's right to make her own reproductive choices was "under attack," the complaint said.
In the complaint, the plaintiff asserted that by signing the ad, she was communicating to Ursuline several messages, including that "it did not have the right to discriminate against women" and that "it should end policies which interfere with access to or advocacy of abortion."
"These policies, practices or customs of defendants are illegal under Title VII and the PDA," the complaint states. "Pregnancy-related medical conditions under Title VII and the PDA include the right to an abortion. The Equal Employment Opportunity Commission guidelines specifically state that a woman is protected from being fired if she has an abortion. ... Plaintiff opposed the illegal practices of her employer Ursuline regarding employee abortions. She is entitled to the protections of 42 U.S.C. SSS 2000e-3(a) which bar retaliation against her by Ursuline or Diocese for legally protected opposition."
In a news release, the diocese argued that the Constitution guarantees every religious institution the right to practice and uphold the teachings of its faith. According to the release, the diocese and its bishop, defendant Michael A. Saltarelli, "strongly support the right of every Catholic school to ensure that its faculty members teach and uphold the doctrine of the Catholic faith."
But attorney Thomas Neuberger, who is handling Curay-Cramer's case pro bono, said the school's religious affiliation will not shield it from the plaintiff's Title VII and PDA action, which is really a sex discrimination claim.
"Under the case law an employee termination for either having an abortion or contemplating having an abortion is discrimination because of sex and therefore it is illegal," the plaintiff contended in her complaint.
However, Ursuline's counsel, Barry Willoughby of Young Conaway Stargatt & Taylor, told the Delaware Law Weekly that a man in Curay-Cramer's situation would similarly have found himself unemployed.
Referring to the gender discrimination charge, Willoughby said, "There's no basis for it whatsoever."
Willoughby said he and his client believe the case boils down to Ursuline and other religious schools' First Amendment right to insist that teachers refrain from publicly attacking the fundamental teachings of their faiths. The attorney said that Curay-Cramer simply could not fulfill her mission at the school when she was publicly opposing its fundamental beliefs.
But Neuberger said he does not believe any court will hold that Title VII's anti-discrimination provisions must yield to the First Amendment's Free Exercise Clause. He said the U.S. Supreme Court's 1990 decision in Employment Division v. Smith supports his assertion.
The events leading up to the suit began in January, when Curay-Cramer was teaching English and religion at Ursuline.
On Jan. 22, the ad ran in The News Journal. It read: "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."
On Jan. 27, Curay-Cramer was fired. According to the complaint, before her termination, the plaintiff was told she could keep her job if she publicly recanted her position and said she was pro-life.
When the plaintiff refused, defendant Barbara C. Griffin, at that time the president and chief executive officer of the school, fired her, the complaint states. Before firing plaintiff, Griffin had consulted with Saltarelli, the complaint asserts.
According to the plaintiff, by signing the pro-choice advertisement, she "decried attacks by her employer on [the right to reproductive choices] and urged her employer to stop interfering with that right." She claimed that she had engaged in protected activity by opposing practices made illegal by Title VII and the PDA.
"Defendants [Ursuline and the Diocese] took adverse action and fired her because of her opposition to illegal activities," the complaint states.
In a count separate from the abortion-related speech issue, Curay-Cramer also alleged gender discrimination on the part of the school and the diocese with respect to volunteer work she did at Planned Parenthood.
The complaint states that Curay-Cramer in May 2002 began donating her time to Planned Parenthood by assisting with mailings and handing out pamphlets at health fairs. The plaintiff supported programs of pre-natal care, education, counseling and health care that benefit economically disadvantaged women, the complaint states.
And while the plaintiff herself would not obtain an abortion, according to the complaint, "she believes she cannot judge another woman who when confronted must face that decision." But the plaintiff said in the pleading that she had not assisted with Planned Parenthood's medical offices or with abortion procedures.
Curay-Cramer asserted in the complaint that women who turn to Planned Parenthood for reproductive services are protected from discrimination under Title VII and the PDA.
"Plaintiff associated with those women," the complaint states. "In her newspaper ad plaintiff also advocated the rights of these women under the law. Plaintiff's advocacy and association were protected activity under Title VII and the PDA.
"Her advocacy and association give her standing to allege gender discrimination by defendants against her. Defendants took adverse action against plaintiff because of her advocacy and association."
Ursuline's communications director, Jerry Botto, is also named as a defendant.