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.
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).
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.
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
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: harassment committed by nonsupervisory employees
EEOC regulations address employer liability for the sexual harassment of nonsupervisory employees as follows:
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. 29 CFR 1604.11(d).
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. 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 rule #2, 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.”
Rule #3: harassment committed by nonemployees
EEOC regulations address employer liability for the sexual harassment of nonemployees as follows:
An 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. 29 CFR 1604.11(e).
Example A church is subject to Title VII. A female secretary claims that she was harassed by a man who frequently was on church premises maintaining duplicating equipment.
Rule #4: 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 Supreme Court has ruled that the employer is liable under such circumstances whether or not it was aware of the harassment. Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998); Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998).
Rule #5: 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 #6: 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 prongs:
(i) The employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” This generally means that the employer 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.
The first prong of the affirmative defense requires a showing by the employer that it undertook reasonable care to prevent and promptly correct harassment. As noted below, such reasonable care generally requires an employer to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.
The EEOC has noted that the second prong of the affirmative defense “arises from the general theory 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. Thus an employer who exercised reasonable care … is not liable for unlawful harassment if the aggrieved employee could have avoided all of the actionable harm. If some but not all of the harm could have been avoided, then an award of damages will be mitigated accordingly.” The EEOC has further noted:
A complaint by an employee does not automatically defeat the employer’s affirmative defense. If, for example, the employee provided no information to support his or her allegation, gave untruthful information, or otherwise failed to cooperate in the investigation, the complaint would not qualify as an effort to avoid harm. Furthermore, if the employee unreasonably delayed complaining, and an earlier complaint could have reduced the harm, then the affirmative defense could operate to reduce damages.
Proof that the employee unreasonably failed to use any complaint procedure provided by the employer will normally satisfy the employer’s burden. However, it is important to emphasize that an employee who failed to complain does not carry a burden of proving the reasonableness of that decision. Rather, the burden lies with the employer to prove that the employee’s failure to complain was unreasonable.
Key Point. Churches with employees should adopt a sexual harassment policy, since this may serve as a defense to liability for a supervisor’s acts of hostile environment sexual harassment (with no tangible employment decision) to the extent that a victim of such harassment does not follow the policy.
The importance of a sexual harassment 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.
The EEOC has observed:
It generally is necessary for employers to establish, publicize, and enforce anti-harassment policies and complaint procedures. As the Supreme Court stated, “Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms.” Burlington Industries v. Ellerth, 118 S.Ct. 2257 (1998). While the Court noted that this “is not necessary in every instance as a matter of law,” failure to do so will make it difficult for an employer to prove that it exercised reasonable care to prevent and correct harassment.
What terms should be included in a sexual harassment policy? Unfortunately, the Supreme Court has not addressed 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.
- Assure 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.
Key Point. The assistance of an attorney is vital in the drafting of a sexual harassment policy.
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 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. 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, unlike Title VII, there is no “interstate commerce” requirement and often fewer than 15 employees are needed to be covered by the law.
Examples illustrating sexual harassment
Key Point. 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.
The following examples illustrate the application of Title VII’s ban on sexual harassment to religious organizations.
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 nonsupervisory 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). 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 five 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.
This example and the previous one 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.
Case studies addressing sexual harassment in churches
The following summaries of actual cases illustrate the application of Title VII’s ban on sexual harassment to religious organizations.
Case Study Sanders v. Casa View Baptist Church, 134 F.3d 331 (5th Cir. 1998)
An associate pastor engaged in sexual relations with two female employees in the course of a counseling relationship. The women later informed the senior pastor. As a result, the two women were dismissed, and the associate pastor was forced to resign. The women later sued the church on the basis of several legal theories, including sexual harassment. A trial court threw out the sexual harassment claim, and the women appealed. A federal appeals court concluded that the church was not guilty of hostile environment sexual harassment. It noted that in order for the two women to establish hostile environment sexual harassment they needed to “produce evidence showing, among other things, that [the church] knew or should have known of the harassment in question and failed to take prompt remedial action.” However, since it was established that the church “took prompt remedial action upon learning of [the minister’s] misconduct,” the two women had to prove that the church should have known of the minister’s behavior before it was disclosed. The court concluded that the women failed to do so. The women claimed that the former minister had offended a few other women by complimenting them on their appearances and hugging them. This evidence, even if true, was not enough to demonstrate that the church “knew or should have known” of a “hostile environment.”
The court also rejected the women’s claim that the church had engaged in “quid pro quo” sexual harassment. It noted that for the women to establish quid pro quo sexual harassment, they “were required to produce evidence showing, among other things, that the harassment complained of affected tangible aspects of their compensation, terms, conditions, or privileges of employment. In addition, they were required to develop evidence demonstrating that their acceptance or rejection of the harassment was an express or implied condition to the receipt of a job benefit or the cause of a tangible job detriment. [But the women’s] own testimony that they were subjected to mild criticism of their work and told that they would not be promoted to positions they knew did not exist indicates that their jobs were not tangibly and detrimentally affected by their decisions to end their sexual relationships with [the minister]… . Further, there is no objective evidence in the record supporting the [women’s] claims that they engaged in sex with [the minister] under an implied threat of discharge if they did not.”
Case Study Jonasson v. Lutheran Child and Family Services, 115 F.3d 436 (7th Cir. 1997)
A federal appeals court ruled that a church-operated school was guilty of sexual harassment as a result of its failure to address its principal’s offensive behavior with several female employees. A denominational agency operated a residential school for emotionally and physically impaired children. Over the course of several years, the principal of the school was accused on many occasions of sexual harassment by female employees. There was substantial evidence that school officials were aware of many of these complaints. School officials launched an investigation into the sexual harassment charges. They found that there was a significant basis to the harassment complaints. The school suspended the principal for five days without pay, ordered him to submit to a psychological assessment, and placed him on three months’ probation. It also invited an outside consultant to conduct several days of seminars on sexual harassment. Even after this corrective action, there were several instances of inappropriate behavior involving the principal. During this same year, the principal was given a satisfactory performance evaluation and a raise.
Several female employees who had been harassed by the principal sued the denominational agency on the ground that it was legally responsible for the principal’s acts because of its failure to respond adequately to the accusations against him. A trial court ruled in favor of the women, and awarded them $300,000 in damages. A federal appeals court upheld this ruling. It referred to the “long-term, ostrich-like failure” by denominational and school officials to “deal forthrightly with [the principal’s] treatment of female employees.” The court observed that “the jury was entitled to conclude that [the agency] not only looked the other way for many years but that its corrective action was woefully inadequate, as demonstrated by [the principal’s] later conduct.” This case illustrates the importance of dealing promptly with complaints of sexual harassment. Letting years pass without addressing complaints of harassment will only significantly increase a church’s risk of liability.
After several years of complaints, the agency finally suspended the principal for five days, ordered a psychological assessment, imposed a three-month probationary period, and invited consultants to conduct sexual harassment training. These acts may seem thorough and adequate, but the court concluded that they were not sufficient to avoid liability for sexual harassment, because (1) the complaints against the principal had occurred over so many years; (2) the principal’s acts of harassment were so pervasive; (3) the agency waited years before acting; (4) the agency’s response was insufficient, since the principal continued to engage in harassment even after he was disciplined; and (5) the principal received a satisfactory employee evaluation and a raise during the same year that he was disciplined for harassment.
Case Study Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004)
A federal appeals court ruled that, in some cases, ministers can pursue sexual harassment claims against an employing church without violating the First Amendment. A woman served as associate pastor of a church for one year. Shortly after assuming this position, she claimed that the church’s senior pastor began sexually harassing her and creating a hostile work environment. She made a formal complaint of sexual harassment to the church, which she claimed took no action. She also claimed that the senior pastor retaliated against her by relieving her of certain duties, verbally abusing her, and otherwise engaging in intimidating behavior. Again, the church, which knew or should have known of the senior pastor’s behavior, failed to act. She sued her church in federal court, claiming that the church violated Title VII of the Civil Rights Act of 1964 which bars covered employers from engaging in sexual harassment or “retaliation” against employees. The court dismissed the lawsuit, concluding that any resolution of the plaintiff’s claims would interfere with the church’s constitutionally protected right to choose its ministers. The plaintiff appealed.
A federal appeals court agreed that to the extent that the plaintiff’s claims involved “an inquiry into the church’s decision to terminate her ministry, those claims cannot proceed in civil court and were properly dismissed.” However, the court concluded that she could, consistent with the First Amendment, “attempt to show that she was sexually harassed and that this harassment created a hostile work environment” since this would involve “a purely secular inquiry.”
The court noted that there are two ways for an employer to be liable for hostile environment sexual harassment:
1. An employer is liable for a hostile environment that “culminates in a tangible employment action.” The court concluded that the ministerial exception prohibited it from assigning liability on this basis since it would directly implicate the church’s practices regarding the employment of clergy.2. When no tangible employment action has been taken, an employer is nevertheless liable for hostile environment sexual harassment unless it can establish an “affirmative defense” by showing that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. An employer’s adoption of a sexual harassment policy helps to demonstrate that an employer used reasonable care to prevent harassment, and, an employee’s failure to use a complaint procedure provided by the employer will normally preclude the employee from pursuing a sexual harassment claim.
The court concluded that neither the First Amendment nor the ministerial exception barred the civil courts from resolving hostile environment sexual harassment lawsuits against churches based on this second form of liability. In other words, a church can be found liable for hostile environment sexual harassment unless it can establish an affirmative defense by having adopted a sexual harassment policy and complaint procedure that an employee chose not to follow.
Case Study Carnesi v. Ferry Pass United Methodist Church, 770 So.2d 1286 (Fla. App. 2000)
A Florida court ruled that it was barred by the First Amendment’s ban on excessive entanglement between church and state from resolving a church secretary’s claim of sexual harassment. A woman was employed as a church secretary and bookkeeper. She sued her church and a denominational agency alleging that a church volunteer who served as chairman of the pastor parish relations committee had sexually harassed her on the job. A state appeals court dismissed her lawsuit on the ground that her claims, “which are based upon the actions of a volunteer rather than another employee, will require a secular court to review and interpret church law, policies, and practices to determine whether an agency relationship existed” between the alleged offender, the committee, the church, and denominational agency, and whether the church defendants could be held liable for the alleged offender’s actions. The court concluded that “this examination would violate the First Amendment’s excessive entanglement doctrine.”
Case Study Dolquist v. Heartland Presbytery, 2004 WL 74318 (D. Kansas 2004)
A federal court in Kansas ruled that a church could be liable for a staff member’s repeated acts of sexual harassment. An ordained female pastor accepted a position with a church. Her duties required continuous contact with the church’s director of music. She claimed that over the course of several years the director of music subjected her to sexually inappropriate behavior which was rude, offensive, oppressive, humiliating, degrading, embarrassing, annoying, and emotionally upsetting. Such conduct included (1) embracing her in an extremely hard, suggestive and sexual manner; (2) making comments about the drug Viagra; (3) telling her that he liked it when she wore short skirts; (4) making explicit gestures and comments; and (5) touching her breasts, buttocks and other personally sensitive areas. The church dismissed the pastor despite her satisfactory job performance. She sued the church in federal court for sexual harassment, and an intentional failure to supervise.
The court ruled that the church could be liable for the music director’s acts on the basis of an intentional failure to supervise since it had the ability to control him and “knew or should have known of the necessity and opportunity for exercising such control.” The court added that a church also can be liable for a negligent failure to supervise, where its failure is due to carelessness or inadvertence.
Case Study Black v. Snyder, 471 N.W.2d 715 (Minn. App. 1991)
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 the two of them as “lovers,” physically contacted her in a sexual manner, and insisted on her companionship outside the workplace 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.
Case Study Father Belle v. State Division of Human Rights, 642 N.Y.S.2d 739 (A.D. 1996)
A New York court ruled that a charity was liable for an executive officer’s acts of sexual harassment. A male executive director of the charity engaged in repeated acts of sexual harassment against female employees. The director was the charity’s highest-ranking employee. The harassment included inappropriate and demeaning communications, unwelcome sexual overtures, unwanted physical contact, and threats to fire the women (or make their jobs more unpleasant) if they did not submit to his advances. The director repeatedly begged each woman to be his “girlfriend” or “mistress,” and to marry him or sleep with him. He frequently demanded that the women attend nonwork-related lunches with him. A personnel committee was apprised of these actions, and it conducted an investigation that came to the attention of the governing board. As a result of the investigation, the director was placed on a brief leave of absence. The women later sued the director for sexual harassment. They also sued the charity and each member of the governing board. The court concluded that the charity was liable for the director’s acts of harassment. The court ruled that the director’s acts constituted both quid pro quo and hostile environment sexual harassment, and it found the charity liable for those acts. The court noted that under federal law an employer is “strictly liable” for quid pro quo harassment, since the harasser has the authority to alter the terms or conditions of the victims’ employment based on their response to his advances. Therefore, the charity was liable for the director’s quid pro quo harassment. On the other hand, under federal law, employers are strictly liable for a hostile work environment created by a victim’s supervisor, but not by coworkers lacking supervisory authority. Since the director was the highest-ranking supervisory employee, the charity was strictly liable for hostile environment harassment caused to his actions.
Case Study Smith v. Raleigh District of the North Carolina Conference of the United Methodist Church, 63 F.Supp.2d 694 (E.D.N.C. 1999)
A federal court in North Carolina ruled that the First Amendment did not prevent it from resolving a sexual harassment claim brought by two nonminister church employees against their church. A church’s receptionist and the pastor’s secretary (both of whom were female) claimed that the pastor had sexually harassed them, and they sued the church and a denominational agency for damages. They claimed that the church defendants were responsible for the pastor’s repeated acts of hostile environment sexual harassment since he was a supervisory employee. In particular, the women alleged that the defendants failed to take timely and appropriate action to correct the problem. The court noted that the women were “secular, lay employees who performed nonreligious, administrative tasks for a religious institution,” and that a resolution of their sexual harassment claim would not violate the First Amendment. It further noted that “an employer’s liability for its employee’s sexual harassment of another individual may be premised on the employer’s own negligence. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct but failed to stop it.” The court concluded that it could decide whether or not the church and denomination “took some action that was reasonably calculated to put an end to the abusive environment” without any inquiry into religious doctrine.
Case Study Smith v. Privette, 495 S.E.2d 395 (N.C. App. 1998)
A North Carolina appeals court ruled that the First Amendment did not prevent it from resolving a sexual harassment lawsuit brought by three female church employees against their church and denominational agencies. Three female church employees (the “plaintiffs”) sued their Methodist church and various Methodist agencies as a result of the sexual misconduct of a pastor. The lawsuit alleged that the pastor “committed inappropriate, unwelcome, offensive and nonconsensual acts of a sexual nature against the plaintiffs, variously hugging, kissing and touching them, and made inappropriate, unwelcome, offensive and nonconsensual statements of a sexually suggestive nature to them.” The plaintiffs further alleged that the pastor’s actions amounted to sexual harassment and assault and battery, causing them emotional distress, embarrassment, humiliation, and damage to their reputations and career potential. The lawsuit alleged that the local church and Methodist agencies “knew or should have known” of the pastor’s propensity for sexual harassment as well as assault and battery upon female employees and that they failed to take any actions to warn or protect the plaintiffs from his wrongful activity. A state appeals court concluded that if a resolution of the plaintiffs’ legal claims did not require the interpretation of church doctrine, then “the First Amendment is not implicated and neutral principles of law are properly applied to adjudicate the claim.”
Case Study Bolin v. Oklahoma Conference, 397 F.Supp.2d 1293 (D. Okla. 2005)
A federal court in Oklahoma ruled that a church was not liable on the basis of sexual harassment for the conduct of a minister. A woman was employed by a denominational office as an administrative assistant. Her supervisor was one of the regional church’s officers. She sued the denomination for sexual harassment based on the following alleged acts of her supervisor:
The supervisor offered to boost her husband’s compensation if she would “cooperate” with him, which she interpreted to mean a sexual relationship. Her husband was a pastor of a local church affiliated with the regional church.She alleged that the supervisor blocked her path by standing in a doorway, and began rubbing her shoulders while saying that “I’m sorry it has to be this way.”The supervisor continued to sexually harass her for the next few months by brushing against her as he took things from her or handed them to her.
The supervisor terminated her, and she sued the supervisor and denomination for sexual harassment. The court noted that for the denomination to be liable for the supervisor’s hostile environment sexual harassment the plaintiff had to show that “the workplace was permeated with discriminatory intimidation, ridicule and insult, that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment.”
The court concluded that the plaintiff failed to show that the conduct of her supervisor was “so extreme as to change the terms and conditions of her employment.” It concluded, “While no woman should be made to feel uncomfortable in the workplace by virtue of a male supervisor leaning into her and brushing against her, because she can point to only two incidents, her work environment cannot be perceived as being pervaded by hostility toward women. Consequently, there is insufficient evidence to support a hostile work environment claim.” The plaintiff also claimed that her supervisor’s invitation to prevent financial harm to her family in exchange for sexual favors amounted to quid pro quo harassment. Once again, the court disagreed, noting that Title VII makes it unlawful for a covered employer to discriminate on the basis of sex against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment.” The court concluded that “the plain text of Title VII requires that the person whose employment conditions are adversely affected also be the person who is discriminated against on the basis of sex.”
Case Study Brown v. Pearson, 483 S.E.2d 477 (S.C. App. 1997)
A South Carolina court ruled that a denominational agency and one of its officials were not liable for a pastor’s acts of sexual harassment. Three female church members claimed that their pastor sexually harassed and abused them over a period of several months. The pastor resigned from his denomination before it could review the charges of sexual harassment. The denomination accepted the resignation as a “withdrawal under complaint or charges,” and discontinued its investigation into the women’s charges. It later spent $4,000 for training pastors in handling sex abuse allegations and for sending the three women to a “survivors of clergy sexual abuse” retreat. The women later sued the denomination and one of its officers, claiming that they were responsible for the pastor’s sexual harassment. The women asserted that the denomination “had a duty to prevent the sexual harassment of its parishioners by a member of the clergy and to help in healing afterward rather than being indifferent.” They insisted that the denomination should be found guilty of negligence for violating this standard.
The court disagreed, noting that the women “have cited no precedent and we are aware of none that stands for the proposition a church owes its parishioners a duty of care regarding its handling of their complaints.” The court also rejected the women’s claim that the denomination was liable for the pastor’s harassment on the basis of a breach of a fiduciary duty. First, it concluded that no fiduciary relationship existed between the women and the denomination. It noted that the women had no contact with the denomination other than a single meeting with one official. Further, the women’s personal expectation that the denomination would “take action” on their complaints did not create a fiduciary relationship: “The steps taken unilaterally by the [women] do not constitute an attempt on their part to establish the relationship alleged, and there is no evidence that [the denomination] accepted or induced any special, fiduciary bond with any of [the women] under these facts in any event.” Even if a fiduciary relationship did exist, it was not violated since “there is no evidence of a breach of that duty. There is no evidence that [denomination] acted other than in good faith and with due regard to [the women’s] interests.”
Case Study Alcazar v. Corporation of Catholic Archbishop of Seattle, 2006 WL 3791370 (W.D. Wash. 2006)
A federal court in Washington ruled that the ministerial exception prevented it from resolving several claims brought by a seminary student against a religious organization, including sexual harassment. The student was assigned to a church in Washington to assist the officiating priest. The victim claimed that he was sexually harassed on numerous occasions by the priest. The student complained of this behavior to the archdiocese, which resulted in an investigation and transfer of the student to another parish. The victim claimed that the archdiocese took additional adverse actions against him on account of his accusations, and as a result, he sued the archdiocese in federal court. The lawsuit asserted several grounds for relief, including sexual harassment. The court cautioned that the ministerial exception “does not foreclose all employment claims against a religious employer, but simply limits them.” When a sexual harassment claim is made against a religious employer, a court may only consider the following three questions: (1) Was the victim subjected to a hostile work environment? (2) If so, did he exercise reasonable care to correct that environment? (3) Did he unreasonably fail to avail himself of those measures?
Case Study Wooten v. Epworth United Methodist Church, WL 2049011 (M.D.N.C. 2007)
A North Carolina federal court ruled that a female church employee could proceed with a sexual harassment lawsuit against her church, but it dismissed her claims against a denominational agency on the ground that “there is nothing in the record suggesting that the Conference exerted any control over the plaintiff’s employment. On these facts, it can be determined as a matter of law that the Conference was not the plaintiff’s employer.”
Case Study 2008 WL 5216192 (M.D.N.C. 2008)
A federal court in North Carolina dismissed a church employee’s allegations of sexual harassment on the ground that the offending behavior, even if true, was not sufficiently severe to amount to harassment. A church hired a woman (the “plaintiff”) as its director of music. As part of her job duties, the plaintiff worked with various musicians and was the staff member in charge of monitoring electronic equipment usage. A few years later the church hired a seminary student (Tim) as its youth director. The plaintiff worked with Tim occasionally, and saw him at weekly staff meetings. She later met with the church’s senior pastor, pursuant to the church’s personnel policy, and made the following allegations of sexual harassment:
Prior to a worship service, Tim placed a photograph of a male bodybuilder wearing a Speedo bathing suit in the plaintiff’s office. He later asked her if she had received his “surprise.”Soon after the picture incident, Tim showed the plaintiff a website project he had been working on for the church youth. When the plaintiff informed him that the technology committee would have to approve the project, he became angry and called her a “stupid [expletive].”While preparing for the trip to New York City, the plaintiff discovered a ticket to the “museum of sex,” which is located in New York City, in her office mailbox. Upon her return from New York, Tim asked if she had received the coupon and if she had used it.The plaintiff went to Tim’s apartment to pick up her daughter from a church youth event. Tim suggested that her daughter and another member of the church youth group use his bedroom.At some point during his employment, Tim returned a computer to the plaintiff which had a copy of movie (rated PG-13) in the DVD drive. The plaintiff’s husband viewed the film and found it offensive due to its sexual content.
The plaintiff alleged a host of other problems with Tim, and felt verbally and physically threatened by him. She sought psychiatric care and was treated for stress, anxiety, and depression. The church never formally disciplined Tim for his behavior. However, his behavior led to a decision by church leaders not to renew his employment as youth director.
The plaintiff resigned her position at the church, and then sued the church for sexual harassment in violation of Title VII. The court concluded that the plaintiff had not presented “sufficient evidence on which a jury could find that the harassment was sufficiently severe or pervasive to alter the conditions of her employment.” It observed:
Title VII does not protect against all unwanted workplace distractions. Behavior such as “simple teasing, off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment … . A plaintiff must show that the harassment was “severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive.” As there is no doubt that [the plaintiff] subjectively regarded the environment as abusive, it must be determined whether a reasonable person would also see the environment as hostile or abusive. In making the objective determination as to whether the work environment was abusive, courts consider: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance. Courts must also consider all of the surrounding circumstances, including the social context in which the particular behavior occurs.
The court reviewed the five instances of a hostile environment alleged by the plaintiff (and summarized above) and concluded:
These five instances, without more, are not enough for a reasonable person to find that the work environment was hostile or abusive. While [Tim’s] actions were inappropriate, they were certainly not frequent, occurring only five times over sixteen months. Moreover, these five instances were neither particularly severe in nature nor physically threatening or humiliating. Tim never used sexually explicit language nor propositioned or inappropriately touched [the plaintiff], and did not engage in behavior that demeaned the status of women in general. Some of these incidents could interfere with a person’s work, but the extent of the interference cannot reasonably be considered great. While his behavior may have been unsuitable for the workplace, Title VII does not attempt to purge the workplace of vulgarity. These isolated incidents engendering mildly offensive feelings are not enough to sustain an action under Title VII.
Even considering these five instances in light of the plaintiff’s other interactions with Tim, the work environment cannot be seen by a reasonable person as hostile or abusive. Title VII does not ensure a happy workplace, only one that is free from unlawful discrimination.
The court also rejected the plaintiff’s contention that a church is a working environment that must be sheltered from the “cruder aspects of secular life,” thereby creating a lower standard for sexual harassment: “Her personal reasons for choosing to work for a church are not relevant to whether an objectively reasonable person would find the work environment to be abusive.”
Case Study 2012 WL 2912516 (W.D. Okla. 2012)
A federal district court in Oklahoma ruled that a church could be sued on the basis of sexual harassment for the conduct of a supervisory employee even though it was not aware of it at the time it occurred. A female church employee (the “plaintiff”) claimed that over the course of a year she was sexually harassed by her supervisor. The harassment included both language and physical conduct. The plaintiff resisted her supervisor’s advances, and this led directly to a reduction in her hours.
The plaintiff reported the sexual harassment to the church. After doing so, her hours continued to be reduced until she was terminated. The church insisted that the plaintiff quit her job.
The plaintiff sued the church, alleging sexual harassment, and claiming that she was subjected to a sexually hostile work environment due to the actions of her supervisor. The court noted that “a plaintiff may prove the existence of hostile work environment sexual harassment in violation of Title VII where sexual conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment … . For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.”
The church claimed that the plaintiff had not shown that any alleged harassment was sufficiently severe or pervasive to alter the conditions of her employment. The court disagreed, and rejected the church’s request that the lawsuit be dismissed:
The court finds plaintiff has set forth sufficient evidence to create a genuine issue of material fact as to whether she suffered sexual harassment that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment. Specifically, plaintiff has submitted evidence that for a year … she was verbally and physically sexually harassed by her supervisor, and that on a weekly, and near daily basis, he referred to her by sexually offensive names and on some 15 occasions, on a weekly and near bi-weekly basis, he either grabbed, groped, pinched, slapped, and squeezed her breasts or buttocks … or he forcibly pinned her against a wall with his body and kissed or tried to kiss her, or he directly requested she engage in sexual intercourse.
The court rejected the church’s argument that it could not be liable for the supervisor’s conduct since it had no knowledge it was occurring. It observed, “An employer is subject to liability to a victimized employee for a hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Since the supervisor was the plaintiff’s immediate supervisor having immediate authority over her, “whether the church had knowledge of any alleged sexual harassment is not dispositive of the church’s liability.”
Case Study Peacock v. UPMC Presbyterian, 2016 WL 890574 (W.D. Pa. 2016).
A federal court in Pennsylvania dismissed a sexual harassment lawsuit brought by a former religious hospital employee on the ground that the offending conduct was not sufficiently severe or pervasive.
A former female employee (the “plaintiff”) sued a denominationally affiliated hospital, claiming that she had been the victim of unlawful sexual harassment in violation of Title VII’s ban on sex discrimination in employment. She claimed that three brief comments by her supervisor and a nonsupervisory employee amounted to hostile environment sexual harassment. She conceded that she was relying on only these three incidents to establish her claim for sexual harassment, but she insisted that these instances were “representative of the overall environment” and that she was subjected to this type of behavior on a daily basis.” A federal district court dismissed the plaintiff’s sexual harassment claim. It began its opinion by observing:
To state a prima facie claim of hostile work environment sexual harassment, a plaintiff must plead that: (i) she suffered intentional discrimination because of her sex; (ii) the discrimination was severe or pervasive; (iii) the discrimination detrimentally affected her; and (iv) the discrimination would negatively affect a reasonable person in plaintiff’s position. To rise to the level of actionable harassment, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
The court concluded that even if all of the plaintiff’s allegations were true, and “as inappropriate for the workplace as the conduct may be,” the plaintiff failed to establish a viable claim: “Simply put, on this record, this behavior does not rise to an actionable level. These three incidents, even when taken together, are neither sufficiently severe nor pervasive to establish a hostile work environment claim.”
The court cited the following examples of prior cases in which the courts rejected sexual harassment claims:
ten incidents of alleged inappropriate harassment over a ten-year period was not sufficiently severe or pervasive, Davis v. City of Newark, 285 Fed. App. 899 (3d Cir. 2008); the issuance of two letters of reprimand over a four-month long period was not sufficiently severe or pervasive, Gonzalez v. Potter, 2010 WL 2196287 (W.D. Pa. 2010); a male supervisor’s alleged comments to a female employee that “the last time I saw you, you were quiet, a virgin, and unmarried,” “when the cat’s away the mice will play,” and “you have good child bearing hips” were not sufficiently severe or pervasive, Porta v. Dukes, 1998 WL 470146 (E.D. Pa. 1998).
Sexual conduct and speech of fellow employees may be offensive, but it will not constitute sexual harassment unless the workplace is permeated with sexually offensive conduct that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
