The attention of the nation has been riveted in recent months to salacious allegations of sexual harassment by politicians, entertainment industry executives, and network news anchors, with some saying the worst is yet to come. Churches are not immune from incidents of sexual harassment, but few church leaders know what it is or how to reduce the risk.
This article will assist church leaders in understanding the relevance of sexual harassment to church staff, by focusing on the following issues:
- What is sexual harassment?
- How common is it?
- Employer liability for sexual harassment committed by employees and nonemployees.
- The importance of a sexual harassment policy.
- Examples illustrating sexual harassment.
- Case studies addressing sexual harassment in churches.
1. What is sexual harassment?
Sexual harassment is a form of "sex discrimination" prohibited by Title VII of the Civil Rights Act of 1964. Equal Employment Opportunity Commission (EEOC) regulations define sexual harassment as follows:
(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. 29 CFR 1604.11(a).
This definition demonstrates that sexual harassment includes at least two types of conduct:
(1) "Quid pro quo" harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship; and
(2) "Hostile environment" harassment, which refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature. The United States Supreme Court has cautioned that Title VII's ban on sexual harassment is not "a general civility code." Title VII does not prohibit teasing, offhand comments, or isolated incidents that are not "extremely serious." Rather, the conduct must be "so objectively offensive as to alter the conditions of the victim's employment." Faragher v, City of Boca Raton, 118 S.Ct. 2275 (1998).
Note that the terms "quid pro quo" and "hostile work environment" do not appear in Title VII or the regulations. Instead, they arose in academic literature, were adopted by the courts, and have since "acquired their own significance." The Supreme Court has warned that they "are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility." Burlington Industries v. Ellerth, 118 S.Ct. 2257 (1998).
Sexual harassment addresses unwelcome sexual contact, whether or not that contact is voluntary. Further, a woman's "consent" is not a defense to an allegation of sexual harassment. The Supreme Court has observed:
The fact that sex-related conduct was voluntary in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit …. The gravamen of any sexual harassment claim is that the alleged sexual advances were unwelcome…. The correct inquiry is whether [the victim] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.
In other words, a female employee may engage in voluntary sexual contact with a supervisor because of her belief that her job (or advancement) depends on it. While such contact would be voluntary, it is not necessarily welcome. Sexual harassment addresses unwelcome sexual contact, whether or not that contact is voluntary.
The Supreme Court has also observed:
A sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile and abusive, and one that the victim in fact did perceive to be so… . Simple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
2. How common is it?
Several surveys have attempted to shed light on the prevalence of sexual harassment in the workplace. Consider:
- Some surveys suggest as many as 50 to 60 percent of women claim to have experienced workplace harassment.
- These surveys have focused on secular employers. It is unclear if harassment is less common among religious employers.
- Women victims typically feel angry, humiliated, or ashamed by such incidents.
- As many as a fifth of victims never report workplace sexual harassment, due in part to the widespread perception that male perpetrators go unpunished and so nothing changes. Another factor is fear of being terminated for disclosing the harassment, especially if the perpetrator is a supervisor.
- Only half of respondents say their employers—whether religious or secular—have adopted a sexual harassment policy.
- In one survey, 34 percent of respondents were not sure what to do if they experienced harassment.
There were 6,758 charges of sexual harassment filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2016, a number that some are predicting will increase significantly due to the widespread publicity being given to the issue. The EEOC dismissed 54 percent of these cases on the ground that no reasonable cause existed that harassment had occurred. The EEOC notes that 16 percent of all charges were by male employees.
3. Employer liability for sexual harassment committed by employees and nonemployees
When is an employer liable for sexual harassment? Consider the following rules:
Rule #1: quid pro quo harassment by supervisory employees
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