The Value of References
The use of references has increased significantly in recent decades as employers seek to manage their risk of liability based on “negligent selection” of workers with insufficient assessment. Perhaps the most common reason that churches use references is to minimize the risk of liability for the sexual molestation of minors by church workers. If used correctly, reference checks can reduce the risk of child abuse, and a church’s liability for incidents of abuse that occur.
A holistic screening practice typically includes a written application, a criminal background check, an interview, and reference checks. This article will respond to 15 common questions that arise when a church either solicits, or responds to, a reference.
Churches are not “guarantors” of the safety of minors or anyone else who attends worship services or other church programs and activities. Legal responsibility for injuries that occur usually is based on negligence, meaning a failure to exercise reasonable care under the circumstances. A church can be liable for injuries to minors who participate in its activities, including sexual molestation, but only if the church fails to exercise reasonable care in the selection of workers or the supervision of programs and activities.
There are many ways for a church to demonstrate the exercise of reasonable care, including written applications for all employees and volunteers who will work with minors, an interview, a criminal records check, and reference checks.
A 2005 report to Congress by the United States Merit Systems Protection Board states, in part:
An employer’s best protection against a negligent hiring claim is to conduct a reasonable inquiry into an applicant’s work history—a reference check—and, of course, an employer must do this effectively and impartially with each applicant under serious consideration for employment. Hiring officials also need to maintain perspective on this risk by remembering that it rarely becomes an issue. The Society for Human Resource Management found that few of the mostly private sector organizations it surveyed about reference checking practices had ever been accused of negligent hiring. The majority of survey participants (97 percent) were sure that no claim had been made against their organization in the previous three years.
Case Study R.A. v. First Church of Christ, 2000 WL 232599 (Pa. Super. 2000)
A Pennsylvania court ruled that a church was not liable for its pastor’s molestation of a young girl since it exercised reasonable care in screening him. Although conceding that the church required the pastor to complete an extensive questionnaire, interviewed him at length and discussed his suitability with all 14 references that he provided, the victim’s parents insisted that the church “should have investigated further.” They claimed that the church should have questioned the 14 references “more closely” and should have asked additional questions of the pastor himself concerning his prior sexual behavior. If the church had done so, the parents argued, it would have discovered that he had a homosexual affair while in high school, had made a subtle advance on his wife’s younger brother more than ten years prior to his employment by the church, had exposed himself from the window of his previous home, and may have abused his own son.
The court conceded that employers have a duty “to exercise reasonable care in selecting, supervising and controlling employees.” However, it insisted that employers cannot be liable unless “it is shown that the employer knew or, in the exercise of ordinary care, should have known of the necessity for exercising control of his employee.”
The court reviewed the facts cited by the parents as proof of the church’s alleged failure to exercise reasonable care in the selection, supervision, and retention of the pastor, and concluded: “We find that [the church’s screening process] was reasonably thorough under the circumstances present at the time. We do not agree that the church had a duty specifically to inquire about all of [the pastor’s] prior sexual conduct in an attempt to ascertain if, for example, he had ever had a homosexual liaison or abused a child. [He] was apparently a happily married man with a stable family. He fully cooperated in the application and interview process. He had no criminal record and had never been arrested or investigated for any crime, sexual or otherwise.
In addition … the church contacted every reference [he] provided, which included people who had knowledge of his previous ministerial positions and throughout his military service. Not a single person contacted provided information that would have given a reasonable person any hint that his sexual propensities needed to be investigated further. All of the references expressed very positive sentiments regarding [the pastor] personally as well as his suitability for the senior minister position.
Lastly, even if the church members who were engaged in the hiring process had inquired further of [the pastor] himself regarding his past personal behavior, he testified that he might well not have revealed anything negative since he was both anxious to get the job and in a state of denial.”
Personal Versus Institutional
There are two basic kinds of references: personal and institutional. Personal references are references from persons that an applicant lists on his or her application. Usually, church leaders are not familiar with personal references, and so they are of limited value. Further, the FBI profile on pedophiles states that the only adult friends of pedophiles tend to be other pedophiles. This further diminishes the value of personal references.
The best reference is an “institutional” reference. This is a reference from another institution with which the applicant has worked with minors either as a paid employee or an unpaid volunteer. Common examples include a church, charity, school, or other organization where the person seeking a position in your church has worked with minors in the past. Your application form should ask applicants to list all such organizations, including contact information.
Some applicants have not worked with other youth-serving institutions in the past, and so no institutional reference is available. In such cases, a church’s only option is to obtain personal references. However, risk can be reduced by limiting personal references in such cases to members of the church.Obviously, obtaining a positive reference from one or more other institutions that have actually observed the applicant interact with minors is the gold standard in terms of references.
For pastoral applicants, the best reference will be from a denominational office with which the church is affiliated. If the church is not affiliated with a denomination, then the best reference will be from board members in other churches in which the applicant has served.
In order to reduce the risk of child abuse on the church premises or during church activities, the most important question you can ask is “are you aware of any reason that the applicant would not be suitable in a position involving interaction with minors?” It is important to stress that the person responding to this question should be someone who would have knowledge of any prior misconduct by the applicant involving minors. This often will be a church’s lead pastor, or a children’s or youth pastor. Clerical staff in the church office may not have sufficient information concerning prior incidents of misconduct, which can lead to “false positive” responses.
The bottom line is that you need to ascertain that the person providing the reference would be aware of any prior incidents of misconduct involving the applicant. It is also helpful if the reference has actually observed the applicant interacting with minors for an extended period of time, but such a person may not necessarily be aware of incidents of misconduct.
References are not limited to managing the risk of child abuse. They are useful in selecting persons for any position in a church, even those involving no interaction with minors. A 2005 report to Congress by the United States Merit Systems Protection Board states, in part:
Employers should carefully consider what the job requires, what will already be known about applicants at the point in time when references are checked, and what kinds of information can best be obtained through reference checking. Some questions may be suggested by the results of prior assessments, such as responses to structured interview questions or gaps in an applicant’s work history.
Questions about a particular issue should be included in reference checking if the issue is job-related, information is still needed about it at this point in the hiring process, and information can be obtained from people who have worked with the applicant. If an issue is not job-related, potential employers should not be inquiring about it as part of the hiring process. If it has been addressed sufficiently with previous assessments and no verification is needed, there may be little need to duplicate the assessment. Finally, if it is not an issue about which former supervisors and coworkers can provide good information, other assessment strategies should be used.
After filtering potential reference checking topics through this decision procedure, hiring officials may find that their reference checking strategy includes a subset of the following topics and corresponding reasons:
- Checking the validity of information obtained from job applications or interviews to determine if the applicant has been dishonest.
- Checking whether an applicant has fabricated or exaggerated self-reported information to determine whether conclusions drawn from this information are accurate.
- Clarifying developmental needs of applicants to determine what post-hire training or development opportunities to provide.
- Discovering inappropriate behavior patterns of applicants to maintain a safe and efficient workplace, and to protect the employer from charges of negligent hiring.
- Assessing competencies that have not been otherwise adequately assessed earlier in the hiring process.
Telephone References Preferred
Churches, charities, schools, and other organizations often refuse to respond to requests for a written reference on a current or former worker out of a fear of liability for what they share. The thinking is that by saying nothing about current or former employees and volunteers, there can be no liability.
The next step in such cases should be a request for a “telephone” reference. Such a reference includes a short telephone call with the institutional reference by a church staff member who notates the reference’s responses to several questions, including, most importantly, if the reference is aware of any reason why the individual would not be suitable working in a position involving interaction with minors. As noted above, a reference from another institution that has observed the applicant interact with minors, and that expresses no hesitation in recommending him or her for a similar position, is the gold standard in risk management.
A 1998 survey of employers by SHRM found that 85 percent of reference checks are done by telephone.
Many if not most references today are obtained by telephone. When conducting reference checks by telephone, there are a number of points to keep in mind, including the following:
- Speak with someone with first-hand knowledge of the applicant’s interactions with minors.
- The staff member speaking with the reference should be capable of asking not only questions on a printed checklist, but also follow-up questions in response to the reference’s answers that may elicit additional pertinent information. This is an important task that should not be performed by entry-level office employees.
- Ask the reference if he or she is aware of other organizations where the applicant worked with minors, and contact these organizations if not listed on the applicant’s application for employment.
- If an institutional reference is nearby, you may get the best and most candid responses by visiting the institution and asking questions in person.
- Have a complete list of questions that you want to ask, with ample space to summarize responses.
- Avoid any questions that might be deemed discriminatory under an applicable employment discrimination law.
Most institutions are willing to provide some information about former employees. The Society for Human Resource Management (SHRM), a trade organization, has surveyed employers on the subject of reference background checks several times since 1998.
A 1998 SHRM survey of employers found widespread organizational support for providing references. It concluded:
- More than three-quarters (76 percent) of organizations participating in the survey provided reference information about current and former employees. It is likely that many references are given even when there is an organizational policy against doing so;
- Almost all organizations (98 percent) will verify dates of employment and other factual information;
- Fewer than half will discuss an applicant’s eligibility for rehire (42 percent) or salary history (41 percent);
- Very few will provide sensitive or judgment-based information about reasons for leaving (19 percent), job qualifications (18 percent), work habits (13 percent), or inappropriate workplace behavior (8 percent).
A 2004 SHRM survey found a similar pattern.
In a 2009 survey of more than 400 randomly selected employers by SHRM, 76 percent said they conduct reference background checks for any job candidates and 55 percent said the primary reason they do so is to reduce their legal liability for negligent hiring. Among the respondents, 81 percent said they always verify former employment.
If an individual or institution will not respond to a reference request, either in writing or by telephone, then make a record of this result. The fact that you tried to obtain the reference will be helpful in establishing the exercise of reasonable care in the selection of an employee or volunteer. In such cases you should proceed with contacting other references, and if necessary, find additional persons and institutions to contact.
The 1998 SHRM survey found that employers check an average of 2.7 references for each job applicant.
Many institutions will only provide “neutral” references that simply verify dates of employment and position held. If that is all the information that an institutional reference will provide, then make a record of this response, and proceed with contacting other references. If necessary, find additional persons and institutions to contact. References that are contacted often can provide the names of other institutions where the applicant has worked with minors.
As previously noted, telephone references are the most common form of reference today. But this is changing. A growing number of employers are using Internet-based reference requests. One of the advantages of Internet-based references is a faster turnaround speed, which can be a critical factor if time is of the essence.
Record Retention and Liability
There are several rules that define how long a church should retain records. For example, different rules apply to the retention of state and federal tax records, contribution records, corporate records, and personnel records.
There are some records that should be retained permanently, and one of these is references. This is due to the fact that statutes of limitation in many states, which specify the time limit for bringing lawsuits, can be extended indefinitely as a result of the so-called “discovery rule,” under which the statute of limitations does not begin to run until a victim of childhood sexual abuse “discovers” that his or her emotional or psychological injuries were connected to the abuse, even if this does not occur for several decades. This means that churches face an ongoing risk of litigation and liability for cases of abuse that occurred many years or even decades ago, even if church leaders had no knowledge of the abuse.
Defending against these decades-old claims can be an arduous task for a church that had no knowledge of the abuse. To rebut the victim’s claim of negligence, church leaders must be able to demonstrate the exercise of reasonable care in the selection and supervision of the perpetrator. One of the best ways to do this is by producing institutional references that express no concerns with the offender working in a position involving interaction with minors. And this means that references should be kept for as long as a viable lawsuit may be filed under a state’s discovery rule.
As important as criminal records checks are in a comprehensive screening process, they should never be viewed as the only screening procedure to be used. To illustrate, a church agency in Florida was found liable in 2014 for a pastor’s molestation of a child in a church that he established. The agency had assisted in training and financing the pastor, and had conducted a criminal records check. Unfortunately, the church did not call or obtain references from the two prior churches in which the pastor had been employed. The pastor had molested at least one child in each of these churches. The victim’s parents argued that if the agency had contacted these other churches for a reference, they would have been advised of the pastor’s prior acts of molestation (which were known to leaders in both churches). The court agreed, and found the agency liable on the basis of negligence for the pastor’s acts.
This case is important because it demonstrates that criminal records checks should never be viewed as the only screening procedure to be used in assessing the fitness of persons for volunteer and compensated positions in a church.
This practice should never be used. Consider a recent case. A church’s child protection policy stated that “all volunteers working with children or youth” were required to maintain church membership for at least three months and to complete a membership class and an application, which included two reference forms and written consent to a background check.
A 21-year-old male (the “defendant”) began attending the church, and soon expressed an interest in volunteering to work with the youth ministry. He filled out a volunteer application, which included the names of two references, and gave it to the church’s youth pastor.
One of the two reference forms turned in by the defendant bore a signature from a woman who later testified she never filled out the reference form, and that her signature on the form was a forgery. She further testified that had the church contacted her, which it did not, she “never” would have recommended the defendant as a volunteer because she had “concerns that he may be a sexual predator.”
For example, she testified that the defendant was a frequent visitor to her house, and that he paid special attention to her second son, who was four years old; that on one night when she and two of her children, and the defendant, were all sleeping together in the same room, the defendant, who was sleeping on the floor, repeatedly “grabbed” the feet of her second son, who was also sleeping on the floor, in an effort to “pull” or “slide” the boy’s body “down” toward him. This happened “four or five times,” and the defendant pretended to be asleep throughout. She repeatedly pulled her son away from the defendant before pulling him off the floor entirely and into bed with her.The church’s administrative assistant found the application suspicious, felt that there was “something not right” about him, and communicated these concerns to the youth pastor who took no further action.
The defendant began attending youth group meetings, and assisted the youth pastor. One of these meetings was a “game night” at which the defendant handed out pizza, played catch football, ran laps around a makeshift trail, and took some boys to the weight room. Some of these activities took place without any other adult present.
At about the time that the defendant became involved with the church’s youth ministry, a 14-year-old boy (the “victim”) began attending Wednesday night youth services at the church as a guest of a friend. On one of his visits the victim met the defendant, describing him to his mother as a “cool” youth leader who liked the same video games that he did.
A few weeks later, the church held a fall festival that included food, children’s games, and other activities. At around 2 p.m. that day, the defendant called the victim and invited him to the festival. When the victim put his mother on the phone, the defendant told her that he was a youth leader and asked if the victim could attend the festival. The victim’s mother agreed; drove the boy and his friend to the church, where adults and children were engaged in cleanup after the conclusion of the festival; and dropped the two boys off in the parking lot without speaking to the defendant or any other adult.
The victim and his friend accompanied the defendant to a vacant room in the church where the defendant told the boys that he wanted to show them “some Army moves” he learned from his drill sergeant. The defendant then put the victim in a headlock, choked him until he passed out, and slapped him in order to revive him. The defendant thereafter led the boys off church property to a wooded nature trail. He told the victim’s friend to wait some distance away. The defendant then proceeded to sexually molest the victim. Later that day, the victim informed his parents what had happened. The parents immediately called the youth pastor, who informed them that: (1) Although the church had received the defendant’s application to become a youth worker, it had not completed the background check on him required under church policy; and (2) the defendant should not have been allowed to have unsupervised contact with youth at the church.
The defendant was arrested and charged with one count of attempted aggravated child molestation and three counts of child molestation. He pled guilty to two counts of child molestation and was sentenced to 20 years.
The victim’s parents sued the church, claiming that it was negligent when it hired, retained, and supervised the defendant as a youth group volunteer and its failure to warn the victim. The trial court dismissed the lawsuit on the ground that “no evidence” demonstrated that the church “knew or should have known” of the defendant’s “propensity or proclivity to commit the criminal offense of sexual assault against a minor.” The parents appealed.
The appeals court began its opinion by noting:
An employer must exercise ordinary care in the selection of employees, and must not retain them after knowledge of incompetency … . These same principles apply to the acts or omissions of non-profit organizations, including churches, when such an organization solicits volunteers to perform projects on its behalf … . As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.
However, a church will be liable for injuries occurring outside the scope of a volunteer’s duties “only where there is sufficient evidence to establish that the employer reasonably knew or should have known of the person’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff,” such that it is “reasonably foreseeable that the person could cause the type of harm sustained by the plaintiff.”
The court concluded that “the question of whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case,” and specifically, “a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.” The court continued:
The church allowed the defendant unsupervised contact with children before it checked his references, one of which would have yielded some evidence that he had attempted to molest a child—the same category of criminal and tortious conduct of which [the parents] complain. Because a jury could reasonably conclude on this record that the church failed to exercise reasonable care as to accepting the defendant’s services as a volunteer youth leader without contacting either of his references, the trial court erred when it granted the church’s summary judgment on the negligent hiring, retention, and supervision claims.
This case is instructive in a discussion of references due to the court’s conclusion that the church could be liable for the defendant’s acts on the basis of negligent hiring because it “allowed him unsupervised contact with children before it checked his references, one of which would have yielded some evidence that he had attempted to molest a child.” In fact, the defendant provided the church with two written references, but one of them later testified that she was never asked for a reference by the church, that her “signature” had been forged, and that she would have alerted the church to the defendant’s propensity to molest minors had she been contacted.
The takeaway point is that churches should not rely on written references provided by applicants for youth or children’s ministry without verifying the authenticity of the references through personal contact with them. Allen v. Church, 761 S.E.2d 605 (Ga. App. 2014).
Avoid Letters of Reference
A 2005 report to Congress by the United States Merit Systems Protection Board states, in part:
“Reference letters are a tempting shortcut for reference providers—they seem more convenient than agreeing to a reference checking discussion. But reference providers who genuinely want to help an applicant will not take this easy way out. Hiring officials correctly regard letters of reference as much less credible than reference checking discussions. They are often prepared by the applicant and then read and signed by the reference provider. Such letters contain only information the reference provider (or applicant) wishes to provide. They offer no exploration of any doubts the prospective employer may have about the applicant’s work history and no opportunity to probe for job-related information about specific competencies. Such letters are of little value unless the letter writer is contacted for a thorough reference checking discussion.”
Liability for Providing a Negative Reference
Church leaders often are reluctant to provide a reference containing negative information because of a fear of legal liability. Some churches and secular employers have been sued by former employees or volunteers because of negative information shared in a reference letter. Liability generally is based on defamation, the infliction of emotional distress, or “interference with contract.”
Case Study St. Clair v. Trustees of Boston University, 521 N.E.2d 1044 (Mass. App. 1988)
An employee of a church-affiliated college was terminated for not returning a paycheck that had been inadvertently issued to him for a time period in which he had performed no services. The employee applied for work at a local business as a security guard. A company supervisor called the college’s personnel department for a reference. A supervisor in the personnel department responded to the reference request with laughter, and then advised the caller that the former employee “has a problem of dishonesty concerning money.” Because of this negative reference, the company decided not to hire the individual. He later sued the college for slander and “interference with business relations.” A Massachusetts appeals court concluded that the college was liable under these circumstances. This case illustrates the legal risks that one assumes in providing negative references to other employers. This is particularly so when “opinions,” as opposed to statements of fact, are expressed.
Many courts and legislatures have recognized a number of legal defenses that are available to employers when responding to a request for a reference letter. These defenses include the following:
Employers cannot be liable for defamation when the information shared in a reference letter is true. Of course, to qualify for this defense, an employer must limit its reference letter to assertions of fact that are verifiable through documents or the testimony of witnesses. Truth is not an absolute defense to claims of emotional distress and interference with contract, but it certainly makes such claims less likely to succeed.
(2) qualified privilege
In many states, employers are protected by a “qualified privilege” when giving references on former employees. This qualified privilege generally prohibits an employer from being guilty of defamation unless the former employee can prove that statements of fact given by the employer in a reference letter were false, and made with malice. Malice in this context generally means that the employer either knew the statements were false, or made them with a reckless disregard as to their truth or falsity. Note that not all states recognize the qualified privilege. As a result, employers should not make potentially defamatory statements about former employees without the advice of a local attorney.
Several states have enacted legislation incorporating the concept of qualified privilege as a matter of law. Such statutes typically protect information shared by employers in reference letters, unless the information is shared with malice.
Case Study Hargrow v. Long, 760 F. Supp. 1 (D.D.C. 1991)
A federal court in the District of Columbia threw out a lawsuit brought by a worker against his former employer for allegedly defamatory references given to prospective employers. The worker was employed as a bookkeeper for a secular company. His employment was marked by difficulties with fellow employees. Without explanation or advance notice, the worker quit his job. He later applied for another job, and the prospective employer sought references from the former employer. One supervisor stated that the worker was “wholly incompetent” and “not eligible for rehire.” Another supervisor stated that the worker was “undesirable as a candidate for rehire,” and that he had “personality conflicts” with co-workers.
The worker sued his former employer, and these supervisors, for defamation on the basis of these statements. The defendants asked the court to dismiss the case, and the court did so. It emphasized that all of the allegedly defamatory statements were protected by a “qualified privilege” which it defined as follows: “One who in the regular course of business is asked by a prospective employer … for information concerning a person, is entitled to the defense of qualified privilege if his reply would otherwise be regarded as defamatory … . The qualified privilege serves an important public function in the employment context. Without the privilege, references would be even more hesitant than they are to provide candid evaluations of former employees.
In order to overcome the qualified privilege, the plaintiff must show that the statements were made with malice. Once a communication is deemed privileged, the burden of proof to demonstrate malice rests with the plaintiff. To show malice, the plaintiff must show either that the statements were made with knowing falsity, in bad faith, or with reckless disregard of the truth.”
Applying this standard, the court concluded that the former employer and supervisors were protected by the qualified privilege with regard to information they shared in their references, and that the former worker had the burden of proving that the reference statements were made with malice. The court concluded that the former worker had produced no evidence to demonstrate that any of the statements had been made with malice.
“However, the right to privacy is not absolute. Employment laws recognize that employers have special needs to access work history information. Past and potential employers have generally been granted a ‘qualified immunity’ to discuss the employment-related performance and behavior of employees with each other. This immunity means that employment-related questions about an applicant’s behavior may, as a general rule, be asked and answered with minimal risk of legal liability so long as an applicant’s rights are not knowingly violated.” Excerpt from a report to Congress by the United States Merit Systems Protection Board.
Current or former employees and volunteers who are adults can release a church from liability associated with information disclosed in a reference letter. As noted above, it is advisable to obtain such a release before issuing a reference letter that will contain negative information. Ideally, a release form should require the person’s signature to be made before a notary public. At a minimum, a release form should require the signer’s signature to be witnessed by one or two other persons whose signatures appear on the form.
Case Study Smith v. Holley, 827 S.W.2d 433 (Tex. App. 1992).
A Texas appeals court ruled that a “release form” signed by an employee prevented her from suing a former employer for statements it made about the employee to a prospective employer. An employee who had been terminated by her employer applied to another employer for a job. The new employer had the employee sign a form titled “authorization for release of information.” This form provided, in part: “I hereby authorize any investigator … bearing this release to obtain any information from schools, residential management agents, employers, criminal justice agencies, or individuals, relating to my activities. This information may include, but is not limited to, academic, residential, achievement, performance, attendance, personal history, disciplinary, arrest, and conviction records. I hereby direct you to release such information upon request to the bearer … . I hereby release any individual, including record custodians, from any and all liability for damages of whatever kind or nature which may at any time result to me on account of compliance or any attempts to comply, with this authorization.” The prospective employer contacted the former employer as part of its background check of the employee, and was informed about her negative job performance. On the basis of this information, the prospective employer declined to hire the individual. She promptly sued the former employer for defamation, and a jury awarded her $1 million in damages. The former employer appealed this verdict. A state appeals court reversed the jury’s verdict, and ruled that the former employer should pay the employee nothing. The court noted that statements made by a former employer to a prospective employer about a former employee are protected by a “qualified privilege.” This ordinarily means that such statements cannot be the basis for defamation unless they are made with “malice.” The court concluded, however, that the statements made by the former employer in this case were protected by an absolute privilege because of the release form signed by the former employee, and accordingly it was impossible for the employee to sue her former employer for defamation.
Reducing Risk When Providing a Negative Reference
Churches may receive requests for reference letters on former employees or volunteers who did not perform satisfactorily, or who were guilty of some form of misconduct. If a church wishes to respond to a request under such a scenario, it can reduce the risk of liability in a number of ways, including one or more of the following:
(1) Do not respond.
(2) Respond with a reference letter (or telephone call) that limits the response to statements of fact that can be verified with documents or testimony. So long as there is a factual basis for a reference, a church will be eligible for the “qualified privilege” in most states that makes employers immune from liability for negative references unless they act with malice. In this context, malice means that the employer knew that a statement was false, or acted with reckless disregard or indifference regarding the statement’s truth or falsity. In no case should opinions be expressed, since these are difficult to establish in a court of law.
(3) Respond only if you receive, in advance, a “release form” signed by the former employee or volunteer releasing your church and its agents, officers, and employees from liability based on information shared in the reference letter. Of course, persons with a history of unsatisfactory work or inappropriate behavior often will refuse to sign such a form, which should serve as a warning to the church or other organization that asked you for the reference letter.
Because the availability of these defenses varies from state to state, it is advisable for a church to check with an attorney before making a negative reference.
A 2005 report to Congress by the United States Merit Systems Protection board contains the following discussion of waivers (also known as releases):
Some private sector employers introduce an additional level of protection against invasion of privacy claims. They require job applicants to sign a waiver that does the following:
1. Specifically authorizes the potential employer to contact references to discuss an employee’s competence, performance, and suitability;
2. Affirms that all information in application materials is accurate; and,
3. Releases the employer and reference providers from liability resulting from appropriate reference checking discussions ….
A waiver requirement may seem to unnecessarily duplicate protection already present in the law. Applicants grant an implied waiver by applying for a job when reference checking is an announced part of the hiring process. However, not only is the express written waiver stronger legal protection, it has additional advantages. First, it may convince some applicants not to risk misrepresenting themselves. Second, it may reduce the costs an employer could incur from defending its right to check references. A poorly informed applicant might challenge a reference checking procedure unsuccessfully, but still require the employer to expend resources in defense. This is less likely to occur when the applicant has formally acknowledged the employer’s right to check references.
In the 1998 SHRM survey of employers, 86 percent of the organizations required job applicants to sign waivers allowing former employers to be contacted and references to be checked. But a 2004 study by SHRM found a slight decrease (to 72 percent) in the waiver requirement.
(4) interference with contract
In many states, one who interferes with an existing contract between two other parties can be sued for “interference with contract.” To illustrate, assume that a church dismisses a pastor for adultery. The pastor is later hired by another church. After a few months, a denominational official learns of the pastor’s new job, and contacts the board members of the new church to inform them of the pastor’s previous misconduct. As a result of this unsolicited disclosure, the church board decides to terminate the pastor’s employment. The pastor may be able to sue the denominational official for interference with contract. Note that this basis of liability requires the existence of a contract. If the church had asked the denominational official for a letter of reference prior to the date the pastor was hired, there can be no interference with contract. The timing of a letter of reference is critical. If it comes before the prospective employee is hired, there can be no interference with contract. If it comes after the employee is hired, there may be liability.
Case Study Marshall v. Munro, 845 P.2d 424 (Alaska 1993)
The Alaska Supreme Court ruled that a denominational official in the Presbyterian Church (USA) could be sued on the basis of interference with contract for making disparaging comments about another minister who recently had been hired by a local church. A Presbyterian minister left a pastoral position in Alaska and accepted a call as minister of a Presbyterian church in Tennessee. When he presented himself to the church to begin his duties, he was informed by church officials that because of derogatory information the church had received from a denominational official (an executive presbyter in Alaska), the church would not hire him. The presbyter had informed church leaders that the minister was divorced, dishonest, unable to perform pastoral duties because of throat surgery, and that he had made an improper sexual advance to a church member in Alaska.
The minister sued the presbyter for intentional interference with his employment contract with the Tennessee church. Generally, one who intentionally interferes with a known contract can be sued for damages. The state supreme court concluded that the civil courts can make this determination without any inquiries into internal church discipline. The court drew an important distinction between clergy who are seeking a pastoral position and those who have been hired. If a church official makes derogatory remarks about a minister who already has been hired by a local church, and if those remarks induce local church leaders to terminate the employment agreement, then the church official can be sued for “interference with contract.” The court insisted that such claims ordinarily will not involve inquiries into core ecclesiastical issues. This suggests that church officials should be more cautious in making remarks about clergy who already have been hired by a local church or other religious organization.
Case Study Hayden v. Schulte, 701 So.2d 1354 (La. App. 1997)
A Louisiana court suggested that it could not resolve a priest’s claim that a church official was guilty of interference with contract as a result of the contents of a letter of reference. A Catholic priest who had been accused of molesting a child was investigated by church officials. He later filed a lawsuit claiming that a church official interfered with his employment prospects as a Navy chaplain as a result of a letter of reference that referred to “some accusations of questionable behavior and some complaints about [the priest’s] ministry.” The church official insisted that the letter of reference pertained to the fitness of the priest for assignment to a chaplaincy position—a matter beyond the reach of the civil courts. The court did not address this issue directly, but seemed to acknowledge that internal communications among clergy or church leaders regarding the fitness of a minister cannot give rise to civil liability.
Case Study McGarry v. Saint Anthony of Padua Roman Catholic Church, 704 A.2d 1353 (N.J. Super. 1998)
A New Jersey court ruled that a church acted properly in dismissing its music director for criminal acts. After working for the church for a few months, the music director was arrested for possession of illegal anabolic steroids. It was later disclosed that the music director had been taking steroids to assist him with bodybuilding, and that he had ordered several shipments of steroids shipped directly to the church to avoid detection. The music director was dismissed, and later applied to another church for similar employment. His application was rejected when the church contacted the previous church and was informed by the pastor of what had happened. The music director sued his former church, alleging breach of contract. He also claimed that the pastor, by informing the other church of the music director’s criminal activities, had wrongfully “interfered with his prospective economic advantage.” The trial court dismissed the music director’s assertion that the church had wrongfully interfered with a “prospective economic advantage.” It noted that the music director could not show that “there was an intentional, without justification, interference” with his economic advantage. Further, the court pointed out that the pastor had disclosed the information only after it was requested, and the information was of criminal conduct admitted by the music director and covered in the newspaper. Additionally, the pastor was protected by a “qualified privilege” for employment references, meaning that he could not be liable unless his reference contained information that the pastor knew to be false.
It is a fundamental principle of law that there can be no liability for a failure to protect another from harm or peril. As one court observed: “One human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other fellow drown.” Evans v. Ohio State University, 680 N.E.2d 161 (Ohio App. 1996). This principle means that a church cannot be liable for failing to warn another church of the dangerous propensities of a former employee or volunteer. To illustrate, if Jack molests children at First Church while serving as a volunteer worker, and later begins working as a volunteer children’s worker at Second Church, First Church is under no legal obligation to warn Second Church of Jack’s dangerous behavior. There are practical reasons for this rule. After all, the leadership of First Church cannot be expected to hire an investigator to track Jack down and find out every church that he attends.
In a leading case, the Wisconsin Supreme Court unanimously ruled that a church did not have an affirmative duty to warn future employers that one of its ministers had molested several boys. Five adult males (the “plaintiffs”) alleged that they were sexually abused by a priest from 1968 to 1973 when he was employed as a teacher by a parochial school in Kentucky. The plaintiff’s lawsuit described an ongoing pattern of sexual abuse of children by the priest over the years. The plaintiffs allege that prior to 1964, he had engaged in inappropriate sexual conduct while at a Catholic seminary; that between 1964 and 1966, he abused more than two dozen children while a teacher at a Wisconsin parochial school; that he subsequently admitted to sexually abusing up to ten more children at another Wisconsin parochial school; and that the pattern of sexual abuse continued while he was a teacher at the parochial school in Kentucky.
The court noted that the plaintiffs’ negligence claim “is premised on an alleged failure to warn unforeseeable third parties, including any potential future employers of the priest at dioceses and parochial school systems everywhere in the country, as well as parents of unforeseeable victims.”The plaintiffs sued the Wisconsin diocese (the “Diocese”), claiming that it “knew or should have known of the priest’s propensity for sexually abusing children and, despite this knowledge, did not refer him to the police or take any other action to prevent him from continuing his pattern of sexually abusing children.” The lawsuit further alleged that the failure of the diocese to refer the priest to the police or to take “other action to prevent a continuation of his pattern of sexually abusing children” amounted to negligence, and that the diocese’s negligent conduct was a substantial factor in causing the priest’s sexual abuse of, and resulting injuries to, the plaintiffs. The plaintiffs specified that such negligence in failing to take other action specifically included a negligent failure to warn “unforeseeable third parties,” including “other dioceses within the United States, the parochial school systems or the parents of unforeseeable victims” of the priest’s propensity for sexual abuse.
The Diocese insisted that the law does not “impose a duty on employers to seek out and disclose information to an employee’s subsequent employers or the public at large concerning a former employee’s history of misconduct or antisocial behavior,” and that under the legal theory of negligent referral or duty to warn “unless an employer gives a favorable reference to a subsequent employer or third party about the former employee while withholding negative information, there is no breach of duty established by the employer’s failure to seek out subsequent employers and alert them to prior negative history of the former employee.”
The supreme court concluded:
The Diocese’s mere knowledge of the priest’s past sexual abuse, or a presumed knowledge of a continued sexual propensity for abuse, is not enough to establish negligence. Reasonable and ordinary care does not require the Diocese to notify all potential subsequent employers within dioceses and parochial school systems across the country, along with all parents of future unforeseeable victims. Requiring such notification under these circumstances would create a vast obligation dramatically exceeding any approach to failure to warn recognized either in this state or in other jurisdictions ….
More importantly, in this case, the specific victims were unforeseeable. Foreseeability of specific victims becomes relevant when an affirmative obligation is argued, such as the obligation to warn. Moreover, the Diocese did not assume a special role in regard to the injured parties … .
The plaintiffs in this case had virtually no relationship with the Diocese. There are significant gaps temporally and geographically, with the plaintiffs separated from the Diocese by several state lines and their abuse separated from the priest’s employment with the Diocese by a number of years, and the complaint never indicated that their paths crossed at all prior to the plaintiffs filing this action. Thus, the relationship between the parties in this case is quite attenuated.
There is no state in which employers are recognized as being negligent for failing to seek out, find, and warn future employers of sexually dangerous former employees. Even those states that have recognized a negligent referral doctrine do not impose liability when a referral letter is sent by a past employer to a future employer of such an employee unless actual misrepresentations are made in such a letter. Thus, we conclude that the plaintiffs’ complaint fails to allege negligence sufficiently to survive a motion to dismiss. Although the plaintiffs allege that the Diocese knew that the priest had a propensity for sexual abuse, what is more pertinent is what the plaintiffs did not allege. They did not allege that the Diocese knew that he was in Kentucky, still teaching children, or working for the Archdiocese in Louisville. They did not allege any knowledge that the children at the [parochial school in Kentucky] were in any danger. They did not allege that the Archdiocese of Louisville asked the Diocese for a reference, that the Diocese made a reference recommending the priest, or that the Diocese had any communication whatsoever with the Archdiocese of Louisville regarding the priest.
The plaintiffs also fail to provide legal authority supporting their arguments. They argue that the duty of ordinary care in this case encompasses a specific obligation to warn all parochial schools and dioceses in this country, as well as future parents of unforeseeable victims, but have cited no cases in which the failure to warn third parties has been described in such sweeping terms … .
We decline to rule that under the general duty of ordinary care recognized in Wisconsin, an employer may be found negligent for failing to warn unforeseen third parties of a dangerous former employee. Such a ruling would extend an employer’s obligation to warn indefinitely into the future to a sweeping category of persons, thereby requiring employers to warn nearly all potential future employers or victims, as the plaintiffs in this case argue … . A decision to the contrary would create precedent suggesting that employers have an obligation to search out and disclose to all potential subsequent employers, which could include in an employment context every school in the country or beyond, all matters concerning an ex-employee’s history … . The primary public policy problem with recognizing the claim as presented by the plaintiffs is that there is no sensible stopping point to recognizing negligence claims for such an open-ended and ill-defined sweeping claim. Recognizing the plaintiffs’ claim against the Diocese in this case could result in requiring all employers to warn all unforeseen potential future employers of any number of problems related to any number of past employees. It could further result in all parents who become aware that their child was sexually abused then facing potential liability for not warning every other parent who might also have children at risk of being in contact with the perpetrator.
This case is significant because it addresses the fundamental question of a church’s duty to affirmatively warn future employers and potential victims of a former employee’s propensity to engage in sexual or other misconduct. The relevance of the case is augmented by the fact that (1) it was a ruling by the Wisconsin Supreme Court; (2) it was a unanimous ruling; and (3) it represents the most extended discussion of this issue in any case involving a religious organization.
A few courts have created a limited exception to the general rule of no liability for a failure to warn others of a former worker’s dangerous propensities. If a “special relationship” exists between church leaders and a potential victim, then the church has a legal duty to warn the potential victim of the dangerous propensities of an employee or volunteer. This exception was recognized in the following case.Note that the court suggested that its ruling might not relieve churches from liability for providing positive, unqualified references on former employees who committed sexual or other misconduct, or for failing to warn other churches where it knows such former employees are working. But, there is no affirmative duty to track former employees in order to give notice to all future employers and potential victims of the risk they face. It should also be noted that churches may face civil liability on the basis of “interference with contract” for gratuitously warning future employers of a former employee’s previous misconduct if a reference was not requested and results in the employee’s dismissal. Hornback v. Archdiocese of Milwaukee, 752 N.W.2d 862 (Wis. 2008).
Case Study Funkhouser v. Wilson, 950 P.2d 501 (Wash. App. 1998)
A Washington state court ruled that a church and a member of the church board could be sued by three women who had been molested by a volunteer youth worker when they were minors. The board member had received information indicating that the worker was a child molester, but failed to disclose this information for 23 years. Because of the board member’s failure to disclose this information, the molester was able to molest the sisters over a period of several years. The court found that the church had a “special relationship” with minors that imposed upon it a duty to protect them from the criminal and intentional acts of others. The court acknowledged that “as a general rule, there is no legal duty to protect another from the criminal acts of a third person.” However, there is an exception if a “special relationship” exists between a church and a potential victim which imposes upon the church a duty to “protect” the victim from harm. The court concluded that a special relationship exists between churches and children who participate in church programs and activities: “[W]e believe that churches and the adult church workers who assume responsibility for the spiritual well being of children of the congregation, whether as paid clergy or as volunteers, have a special relationship with those children that gives rise to a duty to protect them from reasonably foreseeable risk of harm from those members of the congregation whom the church places in positions of responsibility and authority over them.”
Note that the victims in this case were members of the same church as the molester, and so it was understandable that the court found a “special relationship” between the victims and the church. But what if the molester began attending a different church? Would church leaders at the former church have a legal duty to warn the second church of the molester’s dangerous propensities? Probably not. It is doubtful that the court would have concluded that a “special relationship” existed between the former church and children in the second church that would give rise to a duty to protect them from the molester by notifying the church of his dangerous behavior.
Employers generally cannot be liable for providing positive references on former workers, so long as they know of no dangerous propensities that may expose others to harm. But there is one big exception. In two historic cases that are of direct relevance to churches, the supreme courts of Texas and California ruled that individuals and their employers face potential legal liability for providing positive and unqualified references on former workers who they know pose a risk of harm to others. In both cases, positive references were provided on individuals with a known background of sexual misconduct involving minors. The molesters were hired on the basis of these references, and they later molested other minors in the course of their new duties. Both courts ruled that persons who provide positive references under these circumstances, without any disclosure of the negative information, are legally responsible for the harm the worker inflicts on others. It is essential for church leaders to be familiar with both of these rulings. While they apply only in the states of Texas and California, it is likely they will be followed in other states. The cases are summarized in the following two examples.
Case Study Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287 (Tex. 1996)
The Texas Supreme Court ruled that a local Boy Scout council could be liable for a scoutmaster’s acts of child molestation because it was aware of rumors suggesting that the scoutmaster had engaged in inappropriate behavior with boys but still recommended him to a leadership position in a local troop. The court concluded that if the council knew or should have known that the molester was “peculiarly likely to molest boys, it had a duty not to recommend him as a scoutmaster.” Further, the council’s “affirmative act of recommending [the molester] as a potential scoutmaster … created a duty on the part of [the council] to use reasonable care in light of the information it had received.” The court concluded: “[W]e recognize that there is no way to ensure that this type of conduct will never happen, despite an organization’s best efforts. However [the local council] and similar organizations deal with children. The public has a strong interest in protecting children from abuse, and parents put their trust in such organizations. Having undertaken to recommend a potential scoutmaster for the church, [the council] had a duty to use reasonable care in doing so to prevent an unreasonable risk of harm to [the victim] and others who would be affected. [The council] breached that duty if it knew or should have known that [the molester] was peculiarly likely to molest boys. On this record, this is the issue determinative of [the council’s] liability.”
Case Study Randi W. v. Muroc Joint Unified School District, 60 Cal. Rptr.2d 263 (Cal. 1997)
The California Supreme Court ruled that the former employers of a teacher who molested an adolescent girl were liable for his actions because they provided his current employer with positive references despite their knowledge of his previous misconduct. A teacher was employed by a public school based in part on the glowing letters of recommendation from the principals of three schools in which he had previously been employed. One of the letters of recommendation stated that “due in large part to [his] efforts, our campus is a safe, orderly and clean environment for students and staff … . I recommend [him] without reservation.” In fact, each of the principals was aware of prior incidents or reports of sexual misconduct by the teacher. They all failed to disclose the teacher’s misconduct in their letters of recommendation.
Unfortunately, the teacher sexually molested a 13-year-old girl (the victim) shortly after beginning his new assignment. The victim later sued the three prior schools and their principals, claiming that they were responsible for her injuries because they were aware of prior incidents of sexual misconduct involving the teacher but failed to disclose this information in their letters of recommendation. The three principals (and their schools) insisted that “a rule imposing liability on writers of recommendation letters could have one very predictable consequence—employers would seldom write such letters, even in praise of exceptionally qualified employees.” The principals pointed out few persons will provide “full disclosure” of all negative information in reference letters since doing so would expose them to liability for defamation or invasion of privacy.
This threat of liability will “inhibit employers from freely providing reference information,” and this in turn will restrict the flow of information prospective employers need and impede job applicants in finding new employment. On the other hand, the victim insisted that employers providing references on former employees are protected under California law by a “qualified privilege.” The qualified privilege renders employers immune from liability for their communications pertaining to a former employee’s “job performance or qualifications” so long as they do not act maliciously and provide the information “to, and upon request of, the prospective employer.” The court concluded that this qualified privilege greatly reduces the concerns expressed by the principals (and their schools).
The court went so far as to observe that the qualified privilege ordinarily would prevent liability in a case such as this involving negligent misrepresentations made by employers about a former employee. However, the court noted that the qualified privilege did not help the principals in this case since it applies only to communications made “upon request of” a prospective employer. The principals “do not claim that they wrote [their letters of recommendation] in response to [the school’s] request, and, accordingly, the privilege is inapplicable.” Having concluded that the principals (and their schools) owed the victim a duty of care, the court addressed the question of whether or not they breached this duty by making misrepresentations or giving false information in their letters of recommendation concerning the teacher. The court conceded that there is no liability for “nondisclosure,” meaning that an employer cannot be legally responsible for a victim’s injuries on the basis of its refusal to disclose information about a former worker. However, the court concluded that this case presented an exception to the general rule: “[T]hese letters, essentially recommending [the teacher] for any position without reservation or qualification, constituted affirmative representations that strongly implied [the teacher] was fit to interact appropriately and safely with female students. These representations were false and misleading in light of [the principals’] alleged knowledge of charges of [the teacher’s] repeated sexual improprieties.”
The court summarized its ruling as follows: “[W]e conclude that [the principals’] letters of recommendation, containing unreserved and unconditional praise for [a former teacher] despite [their] alleged knowledge of complaints or charges of his sexual misconduct with students, constituted misleading statements that could form the basis for … liability for fraud or negligent misrepresentation. Although policy considerations dictate that ordinarily a recommending employer should not be held accountable for failing to disclose negative information regarding a former employee, nonetheless liability may be imposed if, as alleged here, the recommendation letter amounts to an affirmative misrepresentation presenting a foreseeable and substantial risk of physical harm to a prospective employer or third person.”
These cases are illustrated by the following examples:
Example G worked as a volunteer children’s worker at First Church. After parents complained to the senior pastor about G’s inappropriate touching of a number of children, G is removed from his position. A few months later G leaves First Church and begins attending Second Church. When he applies as a children’s worker, Second Church contacts First Church for a reference. First Church sends a letter containing a strong and unqualified recommendation of G. Nothing is disclosed regarding G’s inappropriate touching of several children. G later molests a child at Second Church. When the child’s parents learn of First Church’s recommendation, they sue the church. In Texas and California, or in any state that follows the decisions of the Texas and California supreme courts (summarized above), First Church may be legally responsible for G’s acts of molestation occurring at Second Church. It knew that G was “peculiarly likely” to molest minors and therefore had a duty not to recommend him.
Example Same facts as the previous example, except that First Church refused to respond to Second Church’s request for a reference regarding G. The Texas Supreme Court ruled that there can be no liability under these circumstances, since First Church has not “recommended” G.
Example B, a former member of First Church, has attended Second Church for a few years and recently applied to work in the church nursery. Second Church asks First Church for a letter of recommendation. The staff at First Church is aware of no information regarding B that would indicate she would be unsuitable for working with minors, and so it sends a letter of recommendation. It does no investigation. B later is accused of abusing a child in the nursery at Second Church. The Texas Supreme Court’s ruling would not make First Church legally responsible for B’s actions under these circumstances. While it recommended her, it had no knowledge indicating that she posed a risk of harm to others. According to the court’s decision, First Church had no independent duty to investigate B on its own.
Example Same facts as the previous example, except that the staff at First Church was aware that B had been accused of child molestation on two different occasions, but it did not believe that the accusations were credible and so ignored them when preparing its letter of recommendation. Under these circumstances, it is possible that a court would conclude that First Church should have known, on the basis of information available to it without an independent investigation, that B posed a risk of harm to children. As a result, it had a duty not to recommend her. In Texas and California, or in any state that follows the decisions of the Texas and California supreme courts (summarized above), First Church may be liable for acts of abuse committed by B at Second Church.
Church leaders often ask how often background checks should be repeated. Some churches never repeat background checks, assuming that it is highly unlikely that an employee or volunteer who has been previously screened could commit a crime involving child molestation, be prosecuted and convicted, and be placed on a sex offender registry, without anyone in the church being aware of it. Other churches take a more aggressive position and repeat background checks periodically, including updated references. Note the following three points:
First, many states require rescreening of employees and volunteers in specified positions, which often include health care, education, finance, child care, and transportation. Church leaders should ensure compliance with any such mandates.
Second, it is helpful for churches to ascertain the practices of other youth-serving charities (“benchmarking”), including the public schools. If none of them conducts repeat background checks, this makes it less likely (but not impossible) that a church that follows a similar practice would be found negligent.
Third, shortly after the disclosure of multiple incidents of child molestation by Penn State University assistant football coach Jerry Sandusky, the university board of trustees appointed a Special Investigations Task Force under the direction of Special Investigative Counsel and former FBI director Louis Freeh to perform an independent, full, and complete investigation of university policies. One of the Task Force’s 119 recommendations was that background checks be repeated at least every five years. The Freeh report does not clarify what it means by “background check.” This term can be interpreted to mean a criminal records check, or reference checks and other screening procedures, or both.
The Task Force report and recommendations, coming from a group that included FBI agents and federal prosecutors, represent the most comprehensive and authoritative analysis of child protection policies, and on that basis should be viewed as a compendium of best practices. The Freeh report’s recommendation that background checks be repeated every five years represents a clearly articulated standard that courts may apply in future cases involving negligence claims against churches and other youth-serving charities by victims of child abuse.
Church leaders should discuss the issue of rescreening with legal counsel to ensure that all applicable requirements are being met.
This article demonstrates the importance of reference checks in the consideration of any applicant for youth or children’s ministry, or any other position involving interaction with minors. Reference checks are important for other positions too, such as counseling, or positions for which a key to the church will be provided. But this article focuses on youth and children’s ministry.
If checking references seems overly burdensome, consider the following:
(1) Your church liability insurance policy may exclude or limit coverage for acts of child molestation. If so, you have a potentially enormous uninsured risk. Reducing this risk is worth whatever inconvenience is encountered in implementing an effective screening program. Just ask any member of a church in which such an incident has occurred.
(2) The primary purpose of screening procedures, including reference checks, is to provide a safe and secure environment for minors who participate in your church’s youth and children’s ministries. Unfortunately, some churches have become targets of child molesters because they provide immediate and direct access to children in a trusting and often unsupervised environment. In order to provide some protection for the youth of your church against such persons, a screening procedure is imperative.
(3) The relatively minor inconvenience involved in establishing an effective screening procedure is a small price to pay for protecting the church from the devastation that often accompanies an incident of child molestation.
(4) Think of screening procedures in terms of risk reduction. A church is free to hire workers without any screening or evaluation, but such a practice involves the highest degree of legal risk. On the other hand, a church that develops a responsible screening procedure has a much lower risk.