How churches will be affected
[Title VII of The Civil Rights Act of 1964]
Article summary. In two landmark rulings, the Supreme Court has addressed the issue of employer liability for the “hostile environment” sexual harassment of supervisory employees. The Court concluded that employers are automatically liable for such harassment, but it provided employers some important relief. If they adopt a sexual harassment policy containing a complaint procedure that is communicated to all employees, and a victim of a supervisor’s “hostile environment” sexual harassment does not follow the policy, then they have an “affirmative defense” to liability. These cases make it imperative for churches to implement an effective sexual harassment policy.
The United States Supreme Court has issued two landmark cases addressing employer liability for sexual harassment. This article will address the significance of each case to churches and other religious organizations. Both cases addressed sexual harassment under Title VII of the Civil Rights Act of 1964. This Act only applies to employers with at least 15 employees and that are engaged in interstate commerce. Churches that do not meet both requirements are not subject to sexual harassment liability under Title VII. However, they often will be subject to a comparable state civil rights law, and so the Court’s rulings will be directly relevant to many churches.
CASE #1 – Faragher v. Boca Raton: facts
A female college student (the “victim”) was employed as a lifeguard by a city government during the summer. Two of her supervisors created a “sexually hostile atmosphere” at the beach by repeatedly subjecting her to “uninvited and offensive touching,” by making lewd remarks, and by frequently speaking of women in offensive and crudely demeaning terms. To illustrate, one of the supervisors told the victim “date me or clean the toilets for a year.” Another supervisor informed her that female lifeguards routinely had sex with their male supervisors, and asked whether she would do the same. The victim was profoundly disturbed by the actions of her supervisors, but she never complained to higher management. Eventually, unable to cope with her supervisors’ harassment any longer, she resigned.
A few years later, the victim sued the city for sexual harassment. The city insisted that it could not be liable for the supervisors’ actions because it was not aware of the inappropriate behavior. Further, the city asserted that the victim failed to notify higher management of her claims, and this prevented the city from becoming aware of the misconduct and doing something about it. A federal district court rejected the city’s defenses and found it liable for the supervisors’ acts of sexual harassment. The court found the harassment to be so pervasive that the city should have known of its existence. The city appealed, and a federal appeals court ruled that the city could not be liable for the “hostile environment” sexual harassment of the supervisors. The victim appealed to the United States Supreme Court.
The Supreme Court’s decision
Background
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.
This definition confirms the conclusion reached by numerous state and federal courts that sexual harassment includes at least two separate types of conduct:
“quid pro quo” harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship, and
“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 victim in this case alleged the supervisors committed the second type of sexual harassment-by their offensive language and physical contacts they created a “hostile environment.” The Court provided helpful guidance on the meaning of a “hostile environment”:
[A] sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. We [have] directed courts to determine whether an environment is sufficiently hostile or abusive by “looking at all the circumstances,” including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Most recently, we explained that Title VII does not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” A recurring point in these opinions is that “simple teasing,” offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment.” These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a “general civility code.” Properly applied, they will filter out complaints attacking “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender—related jokes, and occasional teasing.” We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment ….
When is an employer liable for “hostile environment” sexual harassment?
No absolute liability
Even if the supervisors’ behavior satisfied the Court’s definition of “hostile environment” sexual harassment, could their employer be liable for that harassment? That was the difficult question the Court addressed next. The Court rejected the victim’s argument that employers always should be responsible for the hostile environment sexual harassment committed by supervisors. It based this conclusion on two considerations:
(1) The “primary objective” of Title VII “is not to provide redress but to avoid harm.” Therefore, it would “implement clear statutory policy and complement the government’s Title VII enforcement efforts to recognize the employer’s affirmative obligation to prevent violations and give credit here to employers who make reasonable efforts to discharge their duty. Indeed, a theory of vicarious liability for misuse of supervisory power would be at odds with the statutory policy if it failed to provide employers with some such incentive.”
(2) Victims of sexual harassment should not be allowed to recover if they fail to “mitigate” their own damages. The Court referred to “the general theory of damages, that a victim has a duty to use such means as are reasonable under the circumstances to avoid or minimize the damages that result from violations of the statute.” For example, an employer may have implemented an effective procedure for reporting and resolving complaints of sexual harassment. Victims who fail to pursue the employer’s procedure should not recover damages that could have been avoided if they had done so. The Court concluded: “If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.”
The Supreme Court’s new rules
The court then announced the following rules for resolving employer liability for hostile environment sexual harassment by supervisors:
Rule #1 – general rule of employer liability. Employers are liable for the “hostile environment” sexual harassment of their supervisory employees having immediate (or “successively higher”) authority over the victim.
Rule #2 – the employer’s affirmative defense. When an employer takes no “tangible employment action” (such as hiring, firing, promotion, compensation, and work assignment) against a victim of a supervisor’s “hostile environment” sexual harassment, then the employer may raise the following two—part “affirmative defense” to liability: (a) the employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” usually through the implementation of an appropriate sexual harassment policy, and (b) the victim “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
The Supreme Court conceded that a sexual harassment policy may not be required in every case to qualify for this affirmative defense, but if left no doubt that such exceptions will be very rare. With regard to the second requirement of the affirmative defense, the Court noted that “while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense.”
Rule #3 – tangible employment actions. When an employer takes a “tangible employment action” (such as hiring, firing, promotion, compensation, and work assignment) against a victim of a supervisor’s “hostile environment” sexual harassment, then the employer is liable for that harassment and there is no affirmative defense available.
CASE #2-Burlington Industries, Inc. v. Ellerth: facts
A woman (the “victim”) worked as a salesperson for a large corporation. During her employment, she alleged that she was subjected to constant sexual harassment by her supervisor. The supervisor had authority to make hiring and promotion decisions subject to the approval of his supervisor, but his job was “not considered an upper—level management position” by his employer. He was not the victim’s immediate supervisor, but their work often put them in contact with each other. Against a background of repeated offensive remarks and gestures which the supervisor allegedly made, the victim placed special emphasis on three alleged incidents:
(1) While on a business trip, the supervisor invited her to the hotel lounge, an invitation she felt compelled to accept because he was her boss. When she gave no encouragement to his suggestive remarks, the supervisor told her to “loosen up” and warned, “[y]ou know, I could make your life very hard or very easy at [work].”
(2) When she was being considered for a promotion, the supervisor expressed reservations during the promotion interview because she was not “loose enough.” The comment was followed by his reaching over and rubbing her knee. The victim did receive the promotion.
(3) She called the supervisor about a job—related matter, and the supervisor responded: “Are you wearing shorter skirts yet, because it would make your job a whole heck of a lot easier.”
After being employed for only a year, the victim quit. She sent a letter to her immediate supervisor explaining she quit because of the other supervisor’s behavior.
While employed, the victim did not inform anyone in authority about the supervisor’s conduct, despite knowing her employer had a policy against sexual harassment. In fact, she chose not to inform her immediate supervisor because “it would be his duty as my supervisor to report any incidents of sexual harassment.”
The victim sued her employer in federal court, arguing that it was legally responsible for the supervisor’s acts of sexual harassment and her resignation. A federal district court dismissed the lawsuit, noting that the supervisor’s behavior amounted to “hostile environment” sexual harassment, and that employers can be liable for this type of harassment only if they know of it. Since there was no evidence that the victim’s employer was aware of the supervisor’s behavior, the lawsuit had to be dismissed. The victim appealed. A federal appeals court ruled in favor of the victim. The employer appealed to the United States Supreme Court.
The Court’s opinion
The Court began its opinion by observing that Title VII prohibits covered employers from discriminating against any employee or applicant “with respect to compensation, terms, conditions or privileges of employment, because of such individual’s sex.” It noted that over the years the courts have identified two types of sexual harassment-“quid pro quo” and hostile environment. “Quid pro quo” harassment refers to conditioning employment opportunities on submission to a sexual or social relationship, while “hostile environment” harassment refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature. Because most courts assumed that an employee’s “compensation, terms, conditions or privileges of employment” are adversely affected by quid pro quo sexual harassment, they concluded that employers are “vicariously liable” for this type of harassment, whether or not they were aware of it. However, most courts concluded that in the case of “hostile environment” sexual harassment, the impact on the victim’s “compensation, terms, conditions or privileges of employment” was less clear. As a result, employers were liable for this kind of harassment only if it was “severe and pervasive” and they were knew that it was occurring.
The Court concluded that the harassment in this case was “hostile environment” rather than “quid pro quo” since no adverse employment action was ever taken against the victim as a result of her refusal to respond to the supervisor’s behavior. The question the Court then addressed was whether or not the employer was liable for this harassment. It observed: “We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, based on sex, but does not fulfill the threat.” The Court reached the following three conclusions:
• Tangible employment decision. An employer is liable for a supervisor’s “hostile environment” sexual harassment if the supervisor “makes a tangible employment decision” involving the victim. A tangible employment action is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The reason an employer is liable in such cases is that “a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.”
• No tangible employment decision. If a supervisor who engages in hostile environment sexual harassment takes no “tangible employment decision” against a victim (as was true in this case), the employer ordinarily will be liable for the harassment.
• The employer’s affirmative defense. If a supervisor who engages in hostile environment sexual harassment takes no “tangible employment decision” against a victim (as was true in this case), the employer may assert an “affirmative defense” to liability. This defense consists of two elements:
(i) The employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” The Court noted that “[w]hile proof that an employer had promulgated an anti—harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.”
(ii) The victim “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” The Court noted that an employee’s failure to use a complaint procedure provided by the employer “will normally suffice to satisfy the employer’s burden under the second element of the defense.”
Key point. Why did the Court provide employers with an “affirmative defense” to liability? It noted that Title VII “is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer liability to depend in part on an employer’s effort to create such procedures, it would effect Congress’ intention to promote conciliation rather than litigation in the Title VII context … To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII’s deterrent purpose.”
The Court sent the case back to the district court to determine whether or not the affirmative defense was available to the employer.
Relevance to churches
Church leaders must pay special attention to this case, since a decision by the United States Supreme Court is controlling in all states. With this in mind, note the following:
1. Are churches subject to Title VII? Sexual harassment is a form of “sex discrimination” prohibited by Title VII of the federal Civil Rights Act of 1964. Are churches covered by this law? That depends. Title VII only applies to employers that (1) have 15 or more employees, and (2) are engaged in interstate commerce. Note the following:
• Churches with fewer than 15 employees are not subject to this law.
• Churches with 15 or more employees are subject to this law if they are engaged in interstate commerce.
- Need more information? The task of counting employees, and the definition of commerce, were explained fully in a feature article on ChurchLawAndTax.com,”Do Federal Employment and Discrimination Laws Apply to Churches?“.
2. Two kinds of sexual harassment. The EEOC regulation quoted above demonstrate that there are at least two separate types of sexual harassment: (1) “Quid pro quo” harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship, or (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.
3. Employer liability. When is an employer liable for sexual harassment? The answer to this question is much clearer as a result of the Supreme Court’s decisions. Here is a summary of the new rules:
Rule #1 – quid pro quo harassment
If a supervisor conditions employment opportunities on an employee’s submission to a sexual or social relationship, and the employee’s “compensation, terms, conditions or privileges of employment” are adversely affected because of a refusal to submit, this constitutes quid pro quo sexual harassment for which the employer will be legally responsible. This is true whether or not the employer was aware of the harassment.
Rule #2 – hostile environment harassment by a supervisor, with a tangible employment decision
If a supervisor creates an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature, this is “hostile environment” sexual harassment for which the employer will be legally responsible if the supervisor takes any “tangible employment action” against the employee. A tangible employment action includes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The employer is liable under such circumstances whether or not it was aware of the harassment.
Rule #3 – hostile environment harassment by a supervisor, with no tangible employment decision
If a supervisor creates an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature, this is “hostile environment” sexual harassment for which the employer will be legally responsible even if the supervisor takes no “tangible employment action” against the employee.
Rule #4 – the employer’s “affirmative defense” to liability for a supervisor’s hostile environment sexual harassment not accompanied by a tangible employment decision
If a supervisor engages in hostile environment sexual harassment but takes no “tangible employment decision” against a victim, the employer may assert an “affirmative defense” to liability. This defense consists of two elements:
(i) The employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” This generally will mean that the employer has adopted a written sexual harassment policy that was communicated to employees, and that contains a complaint procedure.
(ii) The victim “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” This generally means that the victim failed to follow the complaint procedure described in the employer’s sexual harassment policy.
4. The importance of adopting a sexual harassment policy. It is now essential for any church having employees to adopt a sexual harassment policy, since this will now serve as a defense to liability for a supervisor’s acts of “hostile environment” sexual harassment to the extent that a victim of such harassment does not follow the policy.
Key point. A written sexual harassment policy does not insulate a church from all sexual harassment liability. It will not serve as a defense in any of these situations: (1) a “tangible employment decision” has been taken against an employee; (2) incidents of quid pro quo sexual harassment; or (3) a victim of a supervisor’s hostile environment sexual harassment pursues his or her remedies under the employer’s sexual harassment policy.
What terms should be included in a sexual harassment policy? Unfortunately, the Supreme Court did not address this question directly. However, other courts have. Here is a list of some of the terms that should be incorporated into a written sexual harassment policy:
• Define sexual harassment (both quid pro quo and hostile environment) and state unequivocally that it will not be tolerated and that it will be the basis for immediate discipline (up to and including dismissal).
• Contain a procedure for filing complaints of harassment with the employer.
• Encourage victims to report incidents of harassment.
• ssure employees that complaints will be investigated promptly.
• Assure employees that they will not suffer retaliation for filing a complaint.
• Discuss the discipline applicable to persons who violate the policy.
• Assure the confidentiality of all complaints.
In addition to implementing a written sexual harassment policy, a church should also take the following steps:
• Communicate the written policy to all workers.
• Investigate all complaints immediately. Some courts have commented on the reluctance expressed by some male supervisors in investigating claims of sexual harassment. To illustrate, a federal appeals court observed: “Because women are disproportionately the victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.”
• Discipline employees who are found guilty of harassment. However, be careful not to administer discipline without adequate proof of harassment. Discipline not involving dismissal should be accompanied by a warning that any future incidents of harassment will not be tolerated and may result in immediate dismissal.
• Follow up by periodically asking the victim if there have been any further incidents of harassment.
Key point. EEOC guidelines referred to in the Supreme Court’s recent decision contain the following language: “Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.”
Key point. The assistance of an attorney is vital in the drafting of a sexual harassment policy.
5. Consent is no defense. A woman’s “consent” is not a defense to an allegation of sexual harassment. The United States Supreme Court has observed: “[T]he 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.
6. Insurance coverage. Church insurance policies generally do not cover employment related claims, including sexual harassment. If your church is sued for sexual harassment, you probably will need to retain and pay for your own attorney, and pay any judgment or settlement amount. This often comes as a shock to church leaders. You should immediately review your policy with your insurance agent to see if you have any coverage for such claims. If you do not, ask how it can be obtained. You may be able to obtain an endorsement for “employment practices.” Also, a “directors and officers” policy may cover these claims.
7. Absolute rule of employer liability rejected. The Supreme Court refused to adopt a rule that would make employers automatically liable for every act of sexual harassment committed by a supervisor. It acknowledged that some courts have ruled that “sexual assaults” by employees are within the “scope of employment,” and therefore the employer is legally responsible for them on the basis of the legal principle of “respondeat superior”. Under this principle, employers generally are responsible for the acts of employees committed within the scope of their employment. Most courts have concluded that sexual misconduct by employees is outside the scope of employment, and therefore the employer is not liable for it. But some courts have adopted a far broader view of “scope of employment” and found that sexual misconduct can meet this test. The Court squarely sided with those courts that have concluded that sexual misconduct is not in the “scope of employment,” and therefore the employer is not legally responsible for it. This is a significant conclusion, since it will make it more difficult for plaintiffs to successfully sue churches for the misconduct of church employees and volunteers. Here is what the Court said:
[T]here is no reason to suppose that Congress wished courts to ignore the traditional distinction between acts falling within the scope and acts amounting to what the older law called frolics or detours from the course of employment. Such a distinction can readily be applied to the spectrum of possible harassing conduct by supervisors, as the following examples show. First, a supervisor might discriminate racially in job assignments in order to placate the prejudice pervasive in the labor force. Instances of this variety of the heckler’s veto would be consciously intended to further the employer’s interests by preserving peace in the workplace. Next, supervisors might reprimand male employees for workplace failings with banter, but respond to women’s shortcomings in harsh or vulgar terms. A third example might be the supervisor who, as here, expresses his sexual interests in ways having no apparent object whatever of serving an interest of the employer. If a line is to be drawn between scope and frolic, it would lie between the first two examples and the third, and it thus makes sense in terms of traditional agency law to analyze the scope issue, in cases like the third example, just as most federal courts addressing that issue have done, classifying the harassment as beyond the scope of employment.
8. Sexual harassment under state law. As noted previously, churches that do not have at least 15 employees and that are not engaged in commerce are not subject to the sexual harassment prohibition under Title VII of the Civil Rights Act of 1964. However, this does not mean that they have no liability for sexual harassment. Most states have enacted their own civil rights laws that bar sexual harassment in employment, and it is far more likely that these laws will apply to churches since there is no “commerce” requirement and often fewer than 15 employees are needed to be covered by the law.
Victims of sexual harassment often prefer not to sue on the basis of Title VII even if their employer is covered under Title VII. The reason is that victims typically receive much higher awards of monetary damages in state court. Lawsuits brought under state law often allege that the employer is guilty of one or more of the following in addition to sexual harassment: (1) “intentional infliction of emotional distress,” (2) defamation, (3) negligent selection or supervision, (4) assault and battery, (5) loss of consortium, (6) invasion of privacy, (7) wrongful discharge, or (8) false imprisonment.
9. Examples. The following examples illustrate some of the more important aspects of the Court’s recent decisions.
Example. A church has 4 employees. A female employee believes that she has been subjected to sexual harassment, and threatens to contact the EEOC. Sexual harassment is a form of sex discrimination that is prohibited in employment by Title VII of the Civil Rights Act of 1964. This law applies only to those employers having at least 15 employees and that are engaged in commerce. Since the church in this example has fewer than 15 employees, it is not subject to Title VII, and therefore the EEOC (which has jurisdiction over Title VII claims) will not be able to process the employee’s complaint.
Example. Same facts as the previous example, except that the church has 12 full—time employees and 6 part—time employees. The church meets the “15 employee” requirement (part—time employees are counted). The remaining question is whether or not the church is engaged in commerce. This question was addressed fully in the March—April 1998 edition of this newsletter. Note that the definition of “commerce” is a broad one, and it is likely that the church in this example will satisfy it.
Example. Assume that a church is covered by Title VII. A female bookkeeper claims that a male custodian has been sexually harassing her by creating a “hostile environment.” She does not discuss the custodian’s behavior with the senior pastor or church board. She later threatens to file a complaint with the EEOC, charging the church with responsibility for the custodian’s behavior. Since the harassment was not committed by a supervisor having the authority to affect the bookkeeper’s terms and conditions of employment, it was not addressed by the Supreme Court’s recent decisions. However, EEOC guidelines addressing employer liability for sexual harassment specify: “With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.” If the pastor and church board were not aware of the custodian’s offensive behavior, then according to this regulation the church will not be legally responsible for it.
Example. Same facts as the previous example, except that the bookkeeper complained on two occasions to the senior pastor about the custodian’s behavior. The pastor delayed acting because he did not believe the matter was serious. According to the EEOC regulations quoted in the previous example, it is likely that the church is liable for the custodian’s behavior since the pastor was aware of the offensive behavior but failed to take “immediate and appropriate corrective action.”
Example. Same facts as the previous example, except that the pastor immediately informed the church board. The board conducted an investigation, determined the charges to be true on the basis of the testimony of other employees, and warned the custodian that one more complaint of harassing behavior would result in his dismissal. This action was based on the bookkeeper’s own recommendation. It is doubtful that the church will be liable for sexual harassment under these circumstances, since it took “immediate and appropriate corrective action.”
Example. A church is subject to Title VII. A female secretary claims that she was harassed frequently by a man who was frequently on church premises maintaining duplicating equipment. An EEOC regulation specifies that “[a]n employer may also be responsible for the acts of non—employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non—employees.”
Example. A church is subject to Title VII. A male supervisory employee informs a female employee that her continuing employment depends on engaging in sexual relations with him. This is an example of quid pro quo sexual harassment. The church is liable for such harassment by a supervisor whether or not it was aware of it. The fact that it had a written sexual harassment policy that prohibited such behavior will not relieve it from liability.
Example. A church is subject to Title VII. A male employee (with no supervisory authority) repeatedly asks another employee to go to dinner with him. This is not quid pro quo sexual harassment because the offending employee has no authority to affect the terms or conditions of the other employee’s work if she refuses to accept his invitations. If the offending employee’s behavior becomes sufficiently “severe and pervasive,” it may become hostile environment sexual harassment. However, the church generally is not liable for hostile environment sexual harassment by a non—supervisory employee unless it was aware of it and failed to take “immediate and appropriate corrective action.”
Example. A church is subject to Title VII. It adopts a written sexual harassment policy that defines harassment, encourages employees to report harassing behavior, and assures employees that they will not suffer retaliation for reporting harassment. A male supervisory employee engages in frequent offensive remarks and physical contact of a sexual nature with a female employee. The female employee is greatly disturbed by this behavior, and considers it inappropriate in a church. In fact, she had sought church employment because she considered it a safe environment and her job would be a ministry. The supervisor eventually dismisses the employee because of her refusal to “go along” with his offensive behavior. Throughout her employment, the employee never informed church leadership of the supervisor’s behavior. Several months after her termination, the employee files a sexual harassment complaint with the EEOC. Will the church be liable for the supervisor’s behavior under these circumstances? After all, it was not aware of the supervisor’s behavior and it adopted a written sexual harassment policy. The supervisor’s behavior constituted “hostile environment” sexual harassment for which the church will be liable. The fact that the church leadership was unaware of his offensive behavior is not relevant. Further, the church’s sexual harassment policy is no defense, since the employee suffered a “tangible employment decision” (dismissal) as a result of her refusal to go along with the supervisor’s behavior.
Example. Same facts as the previous example, except that the employee was not dismissed and suffered no “tangible employment decision” (firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits). According to the Supreme Court’s recent decisions, the general rule is that an employer is liable for a supervisor’s “hostile environment” sexual harassment that does not result in a tangible employment decision against the victim. However, the employer has an “affirmative defense” to liability if (1) it adopted a sexual harassment policy that was adequately communicated to employees, and (2) the victim failed to pursue her remedies under the policy. The church in this case qualifies for the affirmative defense. It adopted a sexual harassment policy, and the victim failed to follow the policy’s complaint procedure. As a result, the church probably would not be liable for the supervisor’s behavior.
Example. Same facts as the previous example, except that the church is not subject to Title VII (it only has 5 employees). The church still may be liable under a state civil rights law, or under other legal theories (such as “intentional infliction of emotional distress,” negligent selection or supervision, assault and battery, invasion of privacy, or false imprisonment).
Example. A church is subject to Title VII. It has not adopted a written sexual harassment policy. A female employee files a complaint with the EEOC, claiming that a supervisor has engaged in hostile environment sexual harassment. She never informed church leadership of the supervisor’s behavior before filing her complaint with the EEOC. The church will be responsible for the supervisor’s behavior under these circumstances. It does not qualify for the “affirmative defense” because it failed to implement a sexual harassment policy.
Example. Same facts as the previous example, except that the church had adopted a written sexual harassment policy that was communicated to all employees. The church will have an “affirmative defense” to liability under these circumstances, because it adopted a sexual harassment policy and the victim failed to follow it by filing a complaint. These two examples demonstrate the importance of implementing a sexual harassment policy. Such a policy can insulate a church from liability for a supervisor’s hostile environment sexual harassment-if no “tangible employment decision” was taken against the victim, and the victim failed to pursue his or her remedies under the policy.
Example. A woman was hired as an associate pastor of a church in Minnesota. A year later, she filed a discrimination charge with the state department of human rights against her supervising pastor. She claimed that her supervising pastor repeatedly made unwelcome sexual advances toward her. He allegedly referred to themselves as “lovers,” physically contacted her in a sexual manner, and insisted on her companionship outside the work place despite her objections. The woman informed her local church leaders as well as her synod before filing the complaint with the state. Although the church and synod investigated the woman’s allegations, no action was taken to stop the alleged harassment. Less than three months after the complaint was filed with the state, the church held a congregational meeting at which it voted to dismiss the woman as pastor. The reason stated for the discharge was the woman’s “inability to conduct the pastoral office efficiently in this congregation in view of local conditions.” A state appeals court ruled that the woman could sue her former supervising pastor for sexual harassment. The court also rejected the supervising pastor’s claim that the woman was prevented from suing because she had “consented” to the supervising pastor’s conduct. Black v. Snyder, 471 N.W.2d 715 (Minn. App. 1991).
