Rotella on Fox Night Court - Contract and Religious Freedom Case

Shannon: Time now for Night Court.

We pass no judgment on these stories, but present them to you at home, the jury, for your consideration. On the docket tonight, a case involving a Catholic high school guidance counselor who signed a contract to follow Catholic doctrine, but she was then put on leave when the school found out she’d married a woman.

Now Counselor Shelly Fitzgerald has filed a discrimination claim with the EOC and says a federal lawsuit may be next.

All right, making arguments tonight, an attorney who’s specializing in cybersecurity and privacy, Leeza Garber, and founder, CEO and senior partner at GenCo Legal, Bryan Rotella. We have assigned you your clients tonight. Thank you both for being with us.

Lisa Garber: Thank you.

Bryan Rotella: Thank you Shannon.

Shannon: Okay, so I want to put a exhibit A, and I won’t read the whole thing, but basically what her attorney is arguing is that she met and exceeded all her job expectations. She did a great job and despite that they then revealed her sexual orientation. They put her on leave and they ostracized her. Bryan, does she have a case?

Bryan Rotella: Shannon, she does, and that’s because nine here loses to one. Title nine is what normally protects folks for sexual orientation. But here, because of the first amendment right to religious freedom, the Catholic school actually can say, you know what, you’ve got to follow our tenets. She signed a contract saying she would do that, according to them she didn’t. So in this particular case, I don’t know that I would argue this if it was my case, but in this particular case, the Catholic school wins.

Shannon: Okay, Leeza, I want to get … take us to exhibit C, which goes to this point. The statement of the Archdiocese of Indianapolis says, she signed and agreed to a ministerial job description in her employment contract that she live in accordance with the teachings of the Catholic church. Miss Fitzgerald has acknowledged that she breached her contract by entering into a marriage that is not valid in the eyes of the Catholic church.

So why does she have a claim if she’s the one who violated her contract, Leeza?

Leeza Garber: She definitely has a claim and it’s unfortunate that we have to have a lawsuit to inform us that employers should judge employees simply on the quality of their work and not on who they choose to marry. But unfortunately there’s a complex patchwork of state and federal and local laws that define the protections for the LGBTQ community. And in this case, this high school guidance counselor, who is in a completely secular position, is being put up against title seven which in her state, Indiana, is in that federal circuit. She’s actually interpreted in that law as being protected. She’s just being discriminated against according to title seven.

Additionally, because many states have looked at what is this religious exception. The ministerial exception, as saying these entities, like the church, administer schools can do what they want. They can hire who they want and fire who they want. But in actuality, unless she is teaching a Bible study class or another religiously themed course, she is a secular employee and is not subject to their, who they can choose.

Shannon: All right, Bryan, of course they’re going to argue she was in a guidance counselor role, but if a counselor with these kids, it’s a Catholic school, of course that they would’ve said maybe she is helping them through things that would involve biblical teaching or Catholic doctrine. As she’s counseling these kids for the next phase in their life.

But exhibit B, this is what she says she was offered. Dissolve her marriage, resign, keep her job for the rest of the year if everything stayed quiet. She can be terminated though if things became too boisterous in the media, Bryan?

Bryan Rotella: Yeah, and again, if you took this out of the religious school, Shannon, I think that we’d probably all agree with what should happen here. But again, folks, pilgrims came over here for a reason, for religious freedom. This Catholic school wants folks to be taught a certain way. She’s a guidance counselor. She signed that contract. There’s a lot of small businesses out there, they know when we sign contracts, we want people to uphold them. That’s what this case is all about regardless of what people’s views are. Religious freedom, and there was a contract.

Shannon: All right Leeza, just a few seconds there. It’s a private entity. It’s a religious entity.

Leeza Garber: It is, but at the same time, if you’re looking at this religious exemption, why aren’t they looking at people that also violate other religious laws, their tenets, like couples that live together before getting married, couples having sex outside of marriage. They’re not looking fairly at the different violations of their moral tenants.

Shannon: And if this goes to a federal lawsuit, maybe we’ll find out more about whether they are enforcing those things or not. Otherwise, Leeza and Bryan, thank you very much for your expertise tonight. We’ll leave it to the folks at home, our jury, to tell us what they think about this case.

Leeza Garber: Thank you.

Bryan Rotella: Thank you.

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