Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act prohibit termination of employees because they are pregnant.  But, what if pregnancy is irrefutable evidence of premarital sex?  And, what if a religious employer has beliefs prohibiting premarital sex?  Can that employer terminate the pregnant employee without violating Title VII?  Those are the issues that United States Magistrate Judge Herman Johnson struggled with recently in Kelley v. Decatur Baptist Church, No. 5:17-CV-1239-HNJ, 2018 WL 2130433 (N.D. Ala. May 9, 2018).

Alexandria Kelley was employed by Decatur Baptist Church as a maintenance and child care employee.  She notified her employer in the Summer of 2015 that she was pregnant, and she was terminated shortly thereafter.  When Ms. Kelley sued in federal court, Decatur Baptist moved to dismiss her complaint, and argued that she was terminated because she engaged in sexual conduct outside of marriage — which violates biblical standards.  Judge Johnson denied that motion to dismiss, while leaving open the possibility for dismissal at a later stage of the litigation.

Decatur Baptist provided Judge Johnson with two legal arguments in support of dismissal.  First, the church argued that the “ecclesiastical abstention doctrine” barred Ms. Kelley’s claims.  Under that doctrine, courts do not decide issues connected to “theological controversy, church discipline, ecclesiastical government, or conformity of members of the church to the standards of morals required of them.”  Myhre v. Seventh-Day Adventist Church, 719 Fed. Appx. 926 (11th Cir. 2018).  (I previously wrote about courts’ reluctance to engage in ecclesiastical disputes here:  Ecclesiastical Disputes In Alabama.) Second, Decatur Baptist argued that Ms. Kelley’s claims were prohibited by the “ministerial exception,” which “precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.”  Kelley, 2018 WL 2130433 at *4.

Judge Johnson found that both of the church’s arguments were premature.  While the church claimed that its decision was based upon religious principals, Ms. Kelley’s complaint (which Judge Johnson was required to accept as completely true) alleged that the termination was based solely upon her pregnancy, and had nothing to do with religion.  Therefore, Judge Johnson gave Ms. Kelley the opportunity to engage in discovery in an attempt to provide evidence in support of her claim.

Decatur Baptist will unquestionably move to dismiss Ms. Kelley’s claims after discovery by filing a motion for summary judgment.  At that point, the church will probably also assert an additional fact-based defense — that it terminated Ms. Kelley for engaging in premarital sex, not for getting pregnant.  “Title VII does not protect any right to engage in premarital sex, but as amended by the Pregnancy Discrimination Act of 1978, Title VII does protect the right to get pregnant.”  Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1319-20 (11th Cir. 2012).