Court Cannot Rule on Sexual Harassment Claims from Church Employees

Ohio case shows ministerial exception can block sexual harassment claims brought by ministers against their churches.

Bio

State: Ohio
Categories: Ministerial Exception, Sexual Harassment

Editor’s Note: On April 6, 2023, an Ohio appeals court affirmed the trial court’s decision to dismiss this case based on the ministerial exception doctrine. “We agree that this is precisely the kind of state inquiry into church employment decisions that the First Amendment forbids,” the appellate court noted in its 18-page decision.

It continued:

Our review of the record and case law convinces us that the trial court’s determination that the ministerial exception prevents application of a secular review and analysis of such claims in this case without engaging in “excessive entanglement” with the ecclesiastical inner workings of the church was supported by competent, credible evidence, and the trial court properly determined that the ministerial exception stripped it of jurisdiction to consider [plaintiffs’] claims that the church had violated state employment laws.

Montgomery v. St. John’s United Church of Christ, 2023 WL 2820472 (Ohio 2023)

Key Point 8-12.5 . Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition.

An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if the employer has adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy.

In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

An Ohio court ruled that it was barred by the ministerial exception from resolving a pastor’s sexual harassment claim against her church.

A pair of plaintiffs sued a church and its board president

This case involved allegations of employment-related sexual harassment asserted against a church (“Church”) ’and its board president (“President”) by a female minister (“Minister”) and a pastoral assistant (“Assistant”).

The Minister was employed at the Church from November 2014 until July 2019.

The Assistant was employed from September 2017 until April 2019.

The plaintiffs alleged that they were subjected to sexual harassment by the President individually and in his church leadership capacity and that, as a result of the acts of harassment, a hostile work environment was created. Plaintiffs further alleged that, as a result of their objecting to and resisting these acts of sexual harassment, their employment was terminated.

The Minister also separately alleged that she was terminated as a result of age and sex discrimination because the Defendants wanted to hire a younger, male minister.

In support of her sexual harassment claim, the Minister recounted inappropriate language of a sexual nature by the President at a church conference in 2018, in three telephone calls, and a few conversations in the church parking lot.

However, she admitted the President never:

spoke to her in a sexual way about having sex with her,
sexually propositioned her or asked her to have a sexual relationship with him,
indicated that any kind of sexual activity was required to keep her job,
touched her in any unwanted manner,
asked her about her own sex life, and
threatened her in any way.

Further, there was no evidence that the Minister ever reported any sexually harassing behavior to anyone at the church.

The Assistant recounted similar claims of inappropriate sexual conversations with the President.

In connection with their discrimination claims, Plaintiffs sought a “permanent injunction prohibiting the defendants from engaging in any policy or practice which discriminates on the basis of sex and age.” Plaintiffs also asked the court to “order the defendants to make plaintiffs whole by rehiring them and restoring any seniority with appropriate back pay, front pay and benefits.”

Plaintiffs’ lawsuit also asserted a cause of action for assault and battery against the President individually, as well as a claim of defamation against both Defendants.

In their defamation claim, Plaintiffs alleged that Defendants knowingly published false statements about them and about the reasons for their termination of employment, reflecting poorly on their character and damaging their reputation in the community and impairing their ability to obtain employment.

Plaintiffs alleged these statements were made with malicious intent.

The Minister’s employment was terminated on July 9, 2019, by a written agreement entitled Agreement for Dissolution and Termination of a Pastoral Relationship. The agreement provided for two months of severance pay plus benefits, along with a release of claims by the Minister. That release language reads as follows:

“The minister, acknowledging receipt of financial payments under this agreement, covenants and agrees that he/she waives all rights to demand and/or secure a civil court and/or a jury trial with respect to adjudication of the matters contained in this Dissolution and Termination Agreement, in matters that pertain to her ministry in the church and/or the negotiations that have led up to this agreement.

It is understood that this Dissolution and Termination Agreement is a final disposition of all matters between the pastor and the congregation. This Dissolution and Termination Agreement contains the entire agreement between the parties hereto and any representations made before or during negotiation are hereby merged in their entirety and this Agreement may not be modified.

The undersigned parties have negotiated this Agreement in good faith and have every intention of being in fulfilling it and further agree to the releases contained herein, representing that they understand its contends [sic] and sign it as their own free act after a full review of the contents.”

The document was approved by the church board on July 8, 2019. It was signed on July 9, 2019, by the president and the church board’s vice president, by church executive committee members, by the church treasurer, and by the Minister.

Does the ministerial exception apply?

The Defendants argued that the Plaintiffs’ claims were barred by the ministerial exception. The court observed:

“The [ministerial exception] doctrine shields religious employers from employment discrimination lawsuits brought by their ministers. Rooted in the First Amendment’s Establishment and Free Exercise Clauses, the exception ensures that the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.

For the ministerial exception to apply, the employer must be a religious institution and the employee must have been a ministerial employee. It is undisputed that [the Church] is a religious institution and that [the Minister] is a ministerial employee. …

With regard to [the Minister] it is undisputed that she is an ordained minister. She had performed weddings and funerals and provided pastoral care prior to her employment [with the Church]. She became a member of the church in 2014 and began working as a “pastoral care assistant” in 2018. In that “pastoral” capacity, she ministered to the elderly and homebound members of [the Church], calling them, visiting them, praying with them, informing them about happenings at the church, and so forth.

If [the Minister] was unable to meet with parishioners, [the Assistant] would take on some of [the Minister’s] duties, meeting with parishioners in nursing homes and hospitals, providing pastoral care by phone or in person, giving “solace and comfort” and fulfilling the mission of the church through these pastoral and ministerial duties.

On at least one occasion [the Assistant] led a sermon before the congregation. [The Assistant] was also taking courses to become ordained through the [church’s denomination], and she was a member of the church governing body (the Church Board) where she was in charge of outreach and missions.

Based on the scope and nature of her work, it is clear that [the Assistant] performed primarily religious functions (as opposed to secular), and she regarded herself as being engaged in pastoral, ministerial work. Furthermore, she had received and was continuing to receive specialized religious training, she performed certain “key functions” as an assistant to [the Minister], and she served as an active and visible messenger of the church’s mission and outreach. Clearly, [the Assistant] satisfies numerous factors deemed pertinent by the [United States] Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012) and undoubtedly qualifies as a “ministerial employee” so as to trigger the application of the ministerial exception.”

As ministerial employees, both Plaintiffs’ claims of wrongful termination based on sex discrimination “are explicitly barred by the ministerial exception as mandated by the clear authority of the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012).”

Accordingly, the Ohio court entered summary judgments as a matter of law for both Defendants on the wrongful termination claim.

Court: Ministerial exception bars hostile work environment claims

The Plaintiffs also claimed that they were victims of the Defendants’ sexual harassment based on a hostile work environment.

Are such claims also barred by the ministerial exception? The court concluded that they were, too.

The court noted that “it is settled that the Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.” However, “where the claim is one involving discrimination based on a hostile work environment (without necessarily a wrongful termination), there is a split of authority as to whether the ministerial exception should still bar the claim.”

The court noted that the United States Supreme Court “has not directly ruled on this issue,” but it discussed the ways the Hosanna-Tabor decision could inform its ruling here:

In the Hosanna-Tabor case the Supreme Court ruled that the First Amendment bars suits “claiming termination in violation of employment discrimination laws,” the Court also ruled that the ministerial exception precludes application of employment discrimination laws to claims concerning the employment relationship between a religious institution and its ministers.

The phrase “and other employment discrimination laws” would appear to include the laws which form the basis of Plaintiffs’ claims herein. Moreover, it is clear that Plaintiffs’ claims herein “concern the employment relationship.”

Therefore, it is undisputed that Plaintiffs’ hostile work environment claims herein are claims brought pursuant to an “employment discrimination statute”.

Moreover, since Plaintiffs seek, in connection with their workplace discrimination claim, a permanent injunction prohibiting the [Defendants] from engaging in any policy or practice which discriminates on the basis of sex and age and also seek an order requiring Defendants to make plaintiffs whole by rehiring them and restoring any seniority with appropriate back pay, front pay and benefits it is abundantly clear that Plaintiffs’ hostile work environment claims are profoundly entangled with, and explicitly implicate, the employment relationship between Defendants and two of its “ministers”, and such claims are therefore barred by the ministerial exception.

In this case, the Plaintiffs did not allege a “quid pro quo” claim of sexual harassment, but a hostile work environment claim. In order to establish a claim of hostile work environment sexual harassment, a plaintiff must show:

(1) that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that the harassing conduct was sufficiently severe or pervasive to affect the terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment, and (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

The Ohio court concluded that “the evidence that has been submitted to the Court … clearly establishes that the Court cannot evaluate or adjudicate the hostile work environment claims without excessively entangling itself in the religious workings of the church and the ecclesiastical domain.”

What about the release agreement?

Defendants also asserted that the Minister’s claim was barred as a matter of law by virtue of the Agreement for Dissolution that she signed. The court agreed. It noted that the Agreement

“ … is plainly supported by consideration in the form of two months of severance pay plus benefits, and it contains a release of claims against the Church. In the Agreement, [the Minister] “covenants and agrees that she waives all rights to demand and/or secure a civil court and/or a jury trial with respect to adjudication of the matters contained in this Dissolution and Termination of a Pastoral Relationship Agreement in matters that pertain to her ministry in the church. …”

The Agreement by its very title … evinces its purpose, which is to memorialize a termination of [the Minister]’s employment as [the Defendants]’ pastor. Therefore, the release language contained therein waiving civil court claims as to “the matters contained in this Dissolution and Termination Agreement, in matters that pertain to her ministry in the church” clearly refers to matters relating to her employment with the Church. No other interpretation can be credibly argued.”

The court noted that an executed release is “ordinarily an absolute bar to a later action on any claim encompassed within the release.” Therefore, the court concluded that the Agreement constituted a “clear and unambiguous contract between [the Minister] and the church, and that [the Minister] has released and waived any future claims with respect to matters pertaining to her employment and ministry there.”

[The Minister] attempted to avoid the Agreement on the ground that she had no opportunity to review it and was therefore reluctant to sign it. The court rejected this argument, citing the “parol evidence rule.” The parol evidence rule

is a rule of law that prohibits a party who has entered into a written contract “from contradicting the terms of the contract with evidence of alleged or actual agreements. … [When] two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence … of [prior] understandings … will not be admitted for the purpose of varying or contradicting the writing. … Therefore, in accordance with well-settled law, the Court will not consider such evidence.”

What this means for churches

This case is important for the following reasons:

1. It demonstrates that the ministerial exception may preclude sexual harassment claims by ministerial employees against their church.

2. It discusses the possible relevance of the parol evidence rule. Your church leaders likely are not familiar with this rule, but it does have potential relevance to any church that fails to include all material terms of a contract and the contract itself.

The important point to note is that the clear meaning of a contract cannot be altered by external evidence outside of the contract itself.

The takeaway point here is that church leaders should take steps to ensure that all material terms are in fact recited in contractual documents that are signed on behalf of the church. Oral understandings of the parties’ intent will not be allowed to alter the meaning of the terms and conditions reflected in a contract.

This rule often comes as a shock to one or both parties to a contract, but note that it can be avoided by a careful reading of any contract prior to signature to ensure the inclusion of all material terms.

3. This case demonstrates the importance of the legal concept of “consideration” in evaluating contracts and agreements. The court noted that the Agreement signed by the Minister and the church “was plainly supported by consideration in the form of two months of severance pay plus benefits.” Consideration, like the parol evidence rule, is a legal doctrine that is not well understood by church leaders. But it should be, since unfamiliarity with it can result in significant liability.

What is consideration, and why is it important?

Consideration is a fundamental requirement in any contract. For a contract to be legally enforceable, each party agrees to do something and must receive something of value in exchange. That “something of value” is called consideration. There is no enforceable contract without it.

Montgomery v. St. John’s United Church of Christ, 2022 Ohio Misc. LEXIS 32 (Ohio App. 2022)

Legal Developments

Sexual Harassment Claim by a Minister Dismissed for Lack of Proof

But federal court also says “ministerial exception” was not an available defense to hostile environment allegation.

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Sexual Harassment

Key Point 8-12.5. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

Key Point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents them from applying employment laws to the relationship between a church and a minister.

A federal court in Ohio ruled that a female church employee’s sexual harassment claim had to be dismissed for lack of proof. However, the church was unsuccessful in its attempt to invoke the “ministerial exception”—a key judicial doctrine affording churches great latitude with hiring and firing ministers—prior to the dismissal.

Background: Employee alleged gender and racial harassment

A church hired an African-American female (the “plaintiff”) as its Minister for Youth Advocacy and Leadership Formation. Over the next few years, the plaintiff alleged that she experienced several incidents of gender and racial harassment:

First, a constituent told her: “I thought you only got the job because you are young and black.”

Second, a supervisor called her a “sassy, young, African-American woman.”

Third, another employee refused to communicate with the plaintiff and spread false information about her work.

Fourth, when the plaintiff complained about biases and stereotypes among the church’s managerial staff, her supervisor advised her to “work harder to get along with persons holding racist, sexist and discriminatory views because of the money they give to [the church].”

Finally, she alleged that her supervisor engaged in “rude, unprofessional, and insensitive conduct” during a meeting regarding her advocacy” at a denominational meeting. When the plaintiff stated she wanted to report her concerns to the church’s human resources department, her supervisor allegedly responded: “Go right ahead. You take everything else to HR.”

She reported her concerns to the HR director but alleged that nothing was done.

A lawsuit followed the employee’s termination

The church terminated the plaintiff’s employment, and she responded by suing the church in federal court claiming that it was liable on the basis of “hostile environment” sexual harassment.

The church asked the court to dismiss the lawsuit on the ground that it was barred by the ministerial exception. The ministerial exception generally bars the civil courts from resolving discrimination claims brought by church employees. But the plaintiff insisted that the ministerial exception did not bar claims of “hostile environment” sexual harassment by church employees.

The court observed:

[T]he court concludes that a minister’s hostile work environment claim can survive the ministerial exception—at least when the claim does not entail excessive entanglement with religious matters. And after examining [the plaintiff’s complaint] the court concludes that it does not implicate ‘any matters of church doctrine or practice.’ . . . [The plaintiff’s] hostile workplace claim involves allegations of racial and gender harassment that are wholly unrelated to [the church’s] religious teachings. [The church does] not claim that such insults are part of [church] policies or religious beliefs. . . . Consequently, because ruling on [the plaintiff’s] hostile workplace claim would not require the court to delve into religious doctrine or other ecclesiastical domains, the court finds that the ministerial exception does not apply to [her lawsuit].

However, the court concluded that while the plaintiff’s sexual harassment claim was not barred by the ministerial exception, “[t]o maintain a hostile work environment claim under Title VII, the victimized employee must allege that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment’” (quoting the US Supreme Court’s decision in Harris v. Forklift Systems, 510 U.S. 17 (1993)).

The court continued:

Courts look to the totality of the circumstances to assess such claims. While there are no hard and fast rules as to how much harassment is enough harassment to qualify as severe or pervasive . . . the Supreme Court has provided a non-exhaustive list of factors to consider when deciding whether a hostile work environment exists including: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance” (quoting Harris).

The court concluded:

To support her claim, the plaintiff “recounts several incidents that allegedly occurred during her employment [summarized above]. . . . Taking these allegations as true and considering them in the light most favorable to [her], the court concludes that the Complaint fails to state a plausible claim for hostile work environment. While [the plaintiff] describes interactions that are unprofessional and unpleasant, none of the alleged conduct was physically threatening or humiliating. At most, these sporadic comments constituted “offensive utterances,” which “do not rise to the level required by the Supreme Court’s definition of a hostile work environment. Mere utterance of an . . . epithet which engenders offensive feelings in an employee . . . does not sufficiently affect the conditions of employment to implicate Title VII.”

That these incidents occurred sporadically over five years further undermines the plaintiff’s claim. . . . Because [she] does not allege severe or pervasive conduct, her allegations do not support a plausible hostile work environment claim. Accordingly, the court grants the church’s motion to dismiss [the sexual harassment claim].

What this means for churches

Sexual harassment is a form of “sex discrimination” prohibited by Title VII of the Civil Rights Act of 1964. Equal Employment Opportunity Commission (EEOC) regulations define sexual harassment as follows:

(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

This definition confirms the conclusion reached by numerous state and federal courts that sexual harassment includes at least two separate types of conduct:

(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.

Note. The above information was taken from section 8-12.5 of Richard Hammar’s Pastor, Church & Law, Fifth Edition. Turn to this section for additional information on the application of sexual harassment laws to churches. It’s also available in the Legal Library.

The court in this case concluded that the ministerial exception does not prevent the civil courts from resolving ministers’ “hostile environment” sexual harassment claims against a church employer so long as the claim “does not entail excessive entanglement with religious matters.” The court was able to resolve the plaintiff’s sexual harassment claim because “it does not implicate any matters of church doctrine or practice” and was “wholly unrelated to [the church’s] religious teachings.”

Perhaps the most important aspect of the court’s opinion was its conclusion that the plaintiff’s sexual harassment claim had to be dismissed because her claims of harassment were not sufficiently serious.

As the Supreme Court has observed, “to maintain a hostile work environment claim under Title VII, the victimized employee must allege that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

The Supreme Court has provided an inexhaustive list of factors to consider when deciding whether a hostile work environment exists, including:

the frequency of the discriminatory conduct;

its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.

Middleton v. United Church of Christ Bd. 483 F. Supp. 3d 489 (N.D. Ohio, Eastern Division 2020).

Legal Developments

Church Protected by “Qualified Privilege” from Defamation Claims by Minister

Court concluded that there is an “absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding,”

Richard R. Hammar, Attorney, CPA

Bio

State: Illinois
Categories: Defamation, Sexual Harassment, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

An Illinois court ruled that statements made in a church disciplinary process involving accusations of sexual misconduct by a minister were protected against claims of defamation by a qualified privilege.

A minister (the “plaintiff”) served as a church’s lead pastor and also as chairperson of a committee responsible for screening candidates for admission to the ministry within his denomination (the “national church”). A woman (the “defendant”) was one of these candidates. The plaintiff claimed that he informed the defendant that she would need additional counseling before her application could proceed. She alleged that when she met with him to discuss her application he made offensive, sexually explicit comments to her. The plaintiff was shocked.

The Book of Discipline prohibits sexual harassment by ministers, stating that sexual harassment “by representatives of the church is a betrayal of a sacred trust, and a sinful abuse of power for which consequences are necessary and appropriate.” The Book of Discipline defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or non-verbal conduct of a sexually offensive nature” that occurs in a workplace setting.

The Book of Discipline also establishes a system for reporting and adjudicating claims of sexual misconduct against members of the clergy. A victim of sexual harassment may report the allegation to his or her local minister. The person receiving this information must then make a written record of the complaint within 48 hours. The accuser then has seven days to submit a written complaint. The complaint must be in writing, sworn under penalty of perjury, and sent via certified mail to the national church’s “Judicial Committee.” The complaint should contain a description of the facts giving rise to the claim.

The Judicial Committee, which acts like a grand jury, serves as the investigative body of the national church. This committee gathers evidence and investigates claims. While performing its role, the Judicial Committee must act confidentially and can discuss the matter only with other individuals responsible for adjudicating the case. Breach of confidentiality “shall be charged and tried pursuant to the relevant provisions” of the Book of Discipline. The Judicial Committee determines whether there is sufficient evidence to support the allegations of sexual misconduct. If the Judicial Committee finds that the allegations are unfounded, the case is dismissed. If the Judicial Committee finds there is sufficient evidence to support the allegation, the matter is referred to the Trial Committee for a hearing. The Trial Committee, which acts as the trier of fact, determines whether the allegations in the complaint are “sustained, unsustained, or neither sustained nor unsustained.” If the Trial Committee determines that the allegations are sustained, the Book of Discipline provides for punishments ranging from a six-month suspension to permanent termination.

Immediately following the incident of harassment, the defendant, pursuant to the procedure spelled out in the Book of Discipline, filed a complaint with her minister, who forwarded it to a regional church officer, who forwarded it to another officer. This officer ordered the Judicial Committee to convene to investigate the matter. The Judicial Committee determined that the defendant’s allegation of harassment was sustained.

The plaintiff sued the defendant, the regional church, and church officers (the “church defendants”) alleging defamation and emotional distress. He claimed that the allegations of sexual misconduct were false, and that repeating them to other ministers brought him into “public disgrace and scandal.”

The church defendants claimed that the plaintiff’s claims were barred by the “ecclesiastical abstention doctrine,” which recognizes the “power and autonomy of religious organizations to govern and discipline their own clergy free from secular court interference.” The answer further asserted that plaintiff, as a minister, was governed by the national church’s Book of Discipline. The church defendants also claimed that the defamation claim had to be dismissed since statements made in the course of internal church disciplinary proceedings are protected by a “qualified privilege,” meaning that they cannot be defamatory unless made maliciously. The defendants argued that the qualified privilege applied since all of the allegedly defamatory communications occurred within the internal disciplinary proceedings of the church. A trial court dismissed the plaintiff’s claims, and he appealed.

The appeals court affirmed the dismissal of the plaintiff’s lawsuit. It began its opinion by noting:

The First Amendment’s protection of internal religious disciplinary proceedings would be meaningless if a parishioner’s accusation that was used to initiate those proceedings could be tested in civil court. Indeed, a person must be free to say anything and everything to his church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion. . . . Since the only defamatory publication allegedly made . . . was made to the church itself within internal disciplinary proceedings, the absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding precludes the court from exercising jurisdiction in this matter.

The court noted that the plaintiff failed to present evidence that the church defendants published the victim’s statements to anyone outside of the internal disciplinary procedures of the church, and therefore the qualified privilege applied and required the dismissal of the plaintiff’s lawsuit.

The court rejected the plaintiff’s claim that his lawsuit could be resolved using neutral principles of law requiring no interpretation of church doctrine:

Plaintiff argues we can evaluate his claims under neutral principles of law. Essentially, notwithstanding any underlying ecclesiastic matter, plaintiff contends that we can determine (1) whether the church followed its own disciplinary proceedings and (2) whether the alleged statements were defamatory under neutral principles of law. We disagree. Illinois courts will not resolve cases that require interpretation of religious doctrine. Nonetheless, when doctrinal issues are not involved, the court may evaluate the dispute under neutral principles of law. Under the neutral principles of law approach, a court objectively examines pertinent church characteristics, constitutions, bylaws, deeds, state statutes, and other evidence to resolve the matter as it would a secular dispute. Traditionally, the neutral principles of law approach is applied to allocate disputed church property under objective, well-established concepts of trust and property law.

While it is possible that resolution of plaintiff’s claims would not require any interpretation of church’s doctrine, resolving this dispute would involve the secular court interfering with the church’s internal disciplinary proceedings. . . . Irrespective of the fact that a court or jury could apply neutral principles of law . . . to determine whether they were defamatory, those statements were published exclusively within the context of the church’s disciplinary proceedings. Therefore, as previously discussed, this court is bound to step aside and permit the church to consider the veracity of the defendant’s charges of sexual abuse through the church’s process.

What this means for churches

The court concluded that there is an “absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding,” meaning that complaints of ministerial misconduct made to church officials for investigation ordinarily will not expose the complainants to civil liability for defamation or emotional distress. However, the court cautioned that there is no absolute privilege to make accusations of ministerial misconduct to persons outside of the church disciplinary process, and as a result, such accusations may expose the complainants to civil liability. 2018 IL App (4th) 170469.

Legal Developments

Court Barred from Settling Sexual Harassment Claim

First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Clergy - Discipline and Removal, Sexual Harassment

Update. The decision made in this case from 2019 was affirmed by Seventh Circuit in 2021, ending the plaintiff’s legal challenge.

Key point 8-10.01. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

Key point 8-12.05. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if the employer adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

A federal appeals court ruled that the ministerial exception barred a church organist’s sexual harassment claim against his employing church for its creation of an offensive working environment through unwelcome verbal conduct of a sexual nature.

An adult male (the “plaintiff”) served for two years as “Music Director, Choir Director and Organist” for the Archdiocese of Chicago and a local parish (the “church defendants”). His immediate supervisor was the parish priest. The priest knew that the plaintiff was gay and that he was engaged to another man. During the plaintiff’s two years of employment, the priest allegedly made remarks critical of the plaintiff’s sexual orientation.

In 2013, the priest asked the plaintiff when he planned to marry his partner, and the plaintiff responded that the wedding would be sometime in 2014. The plaintiff claimed that the abusive and harassing behavior became increasingly hostile as the wedding date approached. The marriage took place in September 2014. Four days after the wedding, the priest asked the plaintiff to resign because of the marriage. When the plaintiff refused to resign, the priest fired him and said, “Your union is against the teachings of the Catholic church.”

The plaintiff sued the priest, church, and the Archdiocese of Chicago, alleging employment discrimination based on sexual orientation and marital status in violation of Title VII of the Civil Rights Act of 1964, and disability discrimination in violation of the Americans with Disabilities Act. On the disability discrimination claim, the plaintiff alleged that he was frequently harassed because of his diabetes and a metabolic syndrome. For example, the plaintiff alleged that the priest repeatedly complained about the cost of keeping the plaintiff on the parish’s health and dental insurance plans because of his weight and diabetes.

The trial court dismissed the lawsuit on the grounds that the discrimination and wrongful-termination claims were barred by the First Amendment’s “ministerial exception” which generally bars the civil courts from resolving employment disputes between churches and clergy. The plaintiff appealed, modifying his claims to challenge the “hostile work environment” rather than the firing itself.

The appeals court’s ruling

Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating against any employee or applicant “with respect to compensation, terms, conditions or privileges of employment, because of such individual’s sex.” Sexual harassment is a form of sex discrimination prohibited by Title VII. The courts have identified two types of sexual harassment—”quid pro quo” and hostile environment. “Quid pro quo” harassment refers to conditioning employment opportunities on submission to a sexual or social relationship, while “hostile environment” harassment refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature. In general, an employer is liable for a supervisory employee’s hostile environment sexual harassment.

In this case, the court noted, the plaintiff conceded that he was a “minister” for purposes of the ministerial exception, but claimed that the church defendants had nonetheless violated Title VII by creating a “hostile environment.” The question before the court was whether the ministerial exception applied to sexual harassment claims based on a hostile environment. The court noted that only a few courts have addressed whether hostile work environment claims brought by a minister are barred by the ministerial exception, and the courts have reached opposite conclusions. The court concluded:

[The plaintiff’s] hostile-environment claims based on his sex, sexual orientation, and marital status pose [a risk] of impermissible entanglement with religion. First, his status as a minister weighs in favor of more protection of the church defendants under the First Amendment. Remember that the church defendants have absolute say in who will be its ministers. The Archdiocese might very well assert that it has a heightened interest in opposing same-sex marriage amongst those who fulfill ministerial roles. Either the Court would have to accept that proposition as true (thus intensifying the intrusion in regulating how the opposition is conveyed to the Church’s ministers) or the parties would have to engage in intrusive discovery on the sincerity of that belief. Indeed, even if the proposition would be accepted as true, the Church itself would have a litigation interest in proving to the jury why there is a heightened interest in opposing same-sex marriage amongst its ministers. That would put the Church in a position of having to affirmatively introduce evidence of its religious justification, so the litigation’s intrusion would not be just a matter of responding to the plaintiff’s discovery requests. The Church might even wish to offer the views of its congregants on this issue, especially if the plaintiff offered evidence from congregants that they would not be offended by a gay music director.

But the appeals court allowed the disability discrimination claim to proceed:

Here, the Archdiocese offers no religious explanation for the alleged disability discrimination. The Archdiocese justifies the comments as “reflecting the pastor’s subjective views and evaluation of plaintiff’s fitness for his position as a minister. But this is not a religious justification based on any Church doctrine or belief, . . . at least as proffered so far by the defense. So the disability claim does not pose the same dangers to religious entanglement as the sexual orientation and marital-status claims. Nothing in discovery should impose on religious doctrine on this claim. Rather, the inquiry will make secular judgments on the nature and severity of the harassment (and whether it even happened), as well as what, if anything, the Archdiocese did to prevent or correct it. The [First Amendment] does not bar the plaintiff from pursuing the hostile-environment claims based on disability.

What this means for churches

This case is helpful because it provides a broad interpretation of the ministerial exception, extending it not only to discrimination claims by dismissed ministers claiming discrimination based on sexual orientation, but also to “hostile environment” sexual harassment claims, whether or not a minister is dismissed. Demkovich v. St. Andrew the Apostle Parish, 2018 U.S. Dist. LEXIS 168584 (N.D. Ill. 2018).

Legal Developments

Employee’s Sexual Harassment Lawsuit Dismissed Due to Lack of ‘Viable Claim’

Court dismissed a sexual harassment lawsuit brought by a former female employee of a denominationally affiliated hospital on the ground that the alleged offenses were not sufficiently severe or pervasive.

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Employment Practices, Sexual Harassment

Key Point 8-12.5 Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if the employer has adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

A federal court in Pennsylvania dismissed a sexual harassment lawsuit brought by a former religious hospital employee on the ground that the alleged offenses were not sufficiently severe or pervasive.

Title VII of the Civil Rights Act of 1964 prohibits covered employers (i.e., those with 15 or more employees that are engaged in interstate commerce) from discriminating against any employee or applicant “with respect to compensation, terms, conditions or privileges of employment, because of such individual’s sex.” Sexual harassment is a form of sex discrimination prohibited by Title VII.

The courts have identified two types of sexual harassment—”quid pro quo” and “hostile environment.” Quid pro quo harassment refers to conditioning employment opportunities on submission to a sexual or social relationship, while hostile environment harassment refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature. In general, an employer is liable for a supervisory employee’s hostile environment sexual harassment.

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: (1) 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); (2) the issuance of two letters of reprimand over a four-month period was not sufficiently severe or pervasive, Gonzalez v. Potter, 2010 WL 2196287 (W.D. Pa. 2010); (3) 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).

What this means for churches

Sexual conduct and speech of fellow employees may be offensive, but it will not necessarily constitute sexual harassment unless there is sexually offensive conduct in the workplace that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

An employer may be liable for a supervisor’s acts of “hostile environment” sexual harassment even if it was not aware the acts were happening when they occurred. The basic rule may be stated as follows: If a supervisor creates an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature, this is “hostile environment” sexual harassment for which the employer will be legally responsible if the supervisor takes any “tangible employment action” against the employee. A tangible employment action includes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The employer is liable under such circumstances whether or not it was aware of the harassment.

An employer may be liable for a supervisor’s acts of hostile environment sexual harassment even if it takes no tangible employment action against the victim. But, in such cases, the employer may assert an “affirmative defense” to liability. This defense consists of two elements:

1. 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 contained a complaint procedure.

2. 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.

As a result, it is a “best practice” for a church with employees to adopt a sexual harassment policy, since this will serve as a defense to liability for a supervisor’s acts of “hostile environment” sexual harassment to the extent that a victim of such harassment does not follow the policy. Peacock v. UPMC Presbyterian, 2016 WL 890574 (W.D. Pa. 2016).

Legal Developments

Church Agency Not Liable for Nudity in Video as Harassment

Woman recording conversations can’t sue when fellow employee shows video with flash of nudity.

State: Federal
Categories: Sexual Harassment

Church Law and Tax Report

Church Agency Not Liable for Nudity in Video as Harassment

Woman recording conversations can’t sue when fellow employee shows video with flash of nudity.

Key point 8-12.5. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

A federal appeals court ruled that a church agency was not liable on the basis of sexual harassment for an employee’s alleged display of a video showing a momentary image of male nudity to a co-employee. A church agency hired a woman (the “plaintiff”) as a clerical employee. The plaintiff’s employment was terminated when her employer discovered that she had been secretly recording her conversations with co-workers without their consent. The employer concluded that her behavior violated its employment standards, and a state eavesdropping law. After her termination, the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging that she was sexually harassed on one occasion when another employee showed her a supposedly humorous video on his computer that included a brief display of male nudity. She also claimed that her employer discriminated against her on the basis of race and national origin when it failed to promote her on four occasions.

A federal district court dismissed all claims against the employer, and the plaintiff appealed.

Race and national origin discrimination
A federal appeals court concluded that the plaintiff “has offered no direct evidence that her race or national origin motivated any decision by the employer. The court pointed out that the plaintiff had failed to submit a timely application for most of the four promotions she sought, and that these positions had already been filled by the time it received the plaintiff’s applications.

Further, the employer presented “non-discriminatory reasons for the decisions not to promote the plaintiff.” In particular, the employer believed she lacked the leadership and interpersonal skills necessary for the jobs.

Sexual harassment
The court concluded that the plaintiff’s sexual harassment claim based on seeing one video with nudity on a co-worker’s computer was also properly dismissed: “The sole alleged incident was not severe enough to support a claim [of sexual harassment]. Although a single instance of behavior can give rise to liability if it is sufficiently severe, past cases finding liability for a single incident have involved facts much more severe than those claimed by the plaintiff … . Showing the plaintiff one video containing a momentary display of male nudity does not come close to reaching the required level of severity for a sexual harassment claim.” As a result, this claim was properly dismissed by the district court.

What This Means For Churches:

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:

“The sole alleged incident was not severe enough to support a claim [of sexual harassment]. Although a single instance of behavior can give rise to liability if it is sufficiently severe, past cases finding liability for a single incident have involved facts much more severe than those claimed by the plaintiff.”

(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

This definition demonstrates that sexual harassment includes at least two separate 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.

This case dealt with the second variety of sexual harassment. The court concluded that “hostile environment” sexual harassment is not implicated by every offensive comment or act. Rather, the harassment must be 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. Johnson v. General Board, 733 F.3d 722 (7th Cir. 2013).

Background

A federal appeals court addressed the complex legal issues surrounding the sexual seduction of church employees by a minister. The court concluded that two female church employees could sue the minister who had seduced them since he had "held himself out" as a qualified marital counselor. However, the court dismissed all of the employees' claims against the church. These included sex discrimination; sexual harassment based on a "hostile work environment"; "quid pro quo" sexual harassment; respondeat superior; ratification; and negligent retention. The court was persuaded that the church was unaware of the pastor's actions, and therefore could not be legally responsible for them.

When a minister engages in a sexual relationship with a church employee, several legal consequences may result affecting the minister, church, and employee. Many of these consequences were illustrated in a recent federal appeals court ruling. The court's ruling will be instructive to all church leaders. This article will summarize the facts of the case, explain the court's ruling, and evaluate the importance of the case to other churches and church staff members.

A church hired a minister of education. The new minister's duties did not include counseling, and he knew that he was not responsible for providing spiritual counseling to church members. He also knew that the church had a written policy of referring church members in need of non—pastoral counseling to a licensed professional counselor. Nevertheless, the minister began counseling with two women after assuring them that he was qualified by both education and experience to provide marital counseling. The women assumed that he was authorized by the church to provide counseling. The minister entered into a sexual relationship with both women, and hired both of them as church employees. After several months, each of the women quit seeing the minister.

The two women worked next to each other in the church office. Eventually, one of them informed the other of her affair with the minister and was shocked to learn of the other's similar experience. The women promptly informed a church deacon of the affairs and the minister was confronted immediately. He confessed to the church's senior minister that he had committed adultery with both women, and accepted the church's request to resign. The two women were placed on administrative leave with pay pending an investigation, and a few months later they were dismissed on the basis of the church's teachings against adultery.

The women later sued the former minister on the basis of both clergy malpractice and breach of fiduciary duties. Although the minister testified that he sometimes discussed scripture in his counseling sessions with the women, the jury found that the counseling he provided was "essentially secular" in nature. At trial, the women presented evidence that the minister committed malpractice by breaching his duties as a marriage counselor-not only by expressing love and affection for each of them and encouraging them to express these feelings for him, but also by engaging in sexual intercourse with them on a number of occasions. They also presented evidence that the minister breached his fiduciary duties, not only by having sexual intercourse with them, but also by disclosing their confidences, including intimate details of their marriages and sexual histories.

The women also sued the church, claiming that it was guilty of unlawful sex discrimination and sexual harassment, and that it was legally responsible for the former minister's actions on the basis of respondeat superior, ratification, and negligent retention.

A jury concluded that the former pastor had committed malpractice and breached his fiduciary duties, and it awarded both regular and punitive damages. However, the jury dismissed all of the women's claims against the church. The case was appealed.

The claims against the former minister

The civil courts can resolve some church disputes

The women claimed that the dismissed minister's conduct constituted "malpractice in pastoral counseling." The minister claimed that pastoral counseling is rooted in religion and cannot be the basis for civil liability. He acknowledged that "purely secular" counseling provided by a minister may be subject to civil liability, but not when the counseling incorporates some religious instruction. He stressed that he occasionally discussed scripture in his counseling sessions with the women, and this demonstrated that the counseling he provided was not purely secular and therefore he could not be sued for his actions. The appeals court rejected the minister's arguments. The court observed:

The first amendment does not categorically insulate religious relationships from judicial scrutiny, for to do so would necessarily extend constitutional protection to the secular components of these relationships …. [T]he constitutional guarantee of religious freedom cannot be construed to protect secular beliefs and behavior, even when they comprise part of an otherwise religious relationship between a minister and a member of his or her congregation. To hold otherwise would impermissibly place a religious leader in a preferred position in our society.

Some church disputes cannot be resolved by the courts

The court acknowledged that there are some internal church disputes that civil courts cannot resolve:

[The first amendment] protects religious relationships, including the counseling relationship between a minister and his or her parishioner, primarily by preventing the judicial resolution of ecclesiastical disputes turning on matters of "religious doctrine or practice." The sanctity of these relationships is further protected by other religious freedoms, including the limited right to engage in conduct that is rooted in religious belief. Under the evidence produced at trial, however, neither of these constitutional protections prevents [the former minister] from being held liable for his misconduct as a marriage counselor and a fiduciary who occasionally discussed scripture within the context of two otherwise secular counseling relationships with members of his congregation.

No liability based on clergy malpractice

The court agreed with the former minister that he could not be liable for the women's injuries on the basis of "clergy malpractice." It observed:

Because the [civil courts] must abstain from ecclesiastical disputes involving questions of doctrine or practice, state courts have rejected uniformly claims for clergy malpractice. This is because such a claim requires definition of the relevant standard of care. Defining that standard could embroil courts in establishing the training, skill, and standards applicable for members of the clergy in a diversity of religions with widely varying beliefs. Furthermore, defining such a standard would require courts to identify the beliefs and practices of the relevant religion and then to determine whether the clergyman had acted in accordance with them. Thus, as these courts have correctly concluded, to recognize a claim for clergy malpractice would require courts to identify and apply the teachings of a particular faith, thereby making the judiciary responsible for determining what conduct and beliefs are part of a particular religion.

Key point. The courts have consistently refused to find clergy liable on the basis of "malpractice" for their pastoral counseling. However, this case illustrates that this rule only applies to the content of counseling that is religious in nature, and not to inappropriate behavior that is engaged in during the counseling relationship. The court concluded that ministers who engage in sexual contact with counselees in the course of marriage counseling may be sued on the basis of malpractice-as marriage counselors rather than as clergy.

Liability based on counseling that is wholly or partly secular

The former minister insisted that he could not be guilty of malpractice as a marriage counselor unless his counseling was purely secular in nature. And, since he occasionally discussed scripture in his counseling sessions with the two women, his counseling was not purely secular. The court disagreed, noting that the minister's marriage counseling was "essentially secular" in nature and that this was enough for him to be guilty of malpractice as a marriage counselor.

The court concluded that the first amendment did not prevent the former minister from being sued for malpractice as a marriage counselor or for breach of fiduciary duties "not derived from religious doctrine." It explained its reasoning as follows:

[B]ecause the jury found that [the former minister] held himself out as possessing the education and experience of a professional marriage counselor, his counseling activities with the [two women] were judged, not by a standard of care defined by religious teachings, but by a professional standard of care developed through expert testimony describing what a reasonably prudent counselor would have done under the same or similar circumstances.

The court based this conclusion in part upon another federal appeals court ruling allowing a church member to claim that her minister had a "duty to possess and apply the skill and knowledge of a reasonably well qualified person providing psychological counseling" because the minister "held himself out to be providing the services of a psychological counselor". Dausch v. Rykse, 52 F.3d 1425 (7th Cir.1994).

Breach of fiduciary duties

The court concluded that the first amendment did not bar the former minister from being sued for breaching the fiduciary duties he owed to the two women as a marital counselor. This is an important ruling. It indicates that marital counselors may be deemed fiduciaries, and as such they are held to a very high standard of ethical behavior with regard to those they counsel. This duty is breached when a counselor engages in sexual relations with a counselee. The court also ruled that it may be breached by "betraying confidences" obtained in a "relation of trust" (such as a counseling relationship). In other words, apart from the sexual misconduct, the former minister was liable to the two women for disclosing confidences he obtained during counseling sessions with them. This aspect of the ruling illustrates the importance of maintaining the confidentiality of information shared during counseling sessions. Disclosing such information without permission may lead to legal liability based on a breach of the counselor's fiduciary duties.

Conclusion

The court concluded that for the former minister to "invoke the protection of the first amendment for conduct taking place within his counseling relationships" with the two women, he "must assert that the specific conduct allegedly constituting a breach of his professional and fiduciary duties was rooted in religious belief." The court then referred to the "obvious truth" that "the activities complained of by the [two women] were not part of his religious beliefs and practices and he is not so brazen as to now contend otherwise."

The claims against the church

The two women not only sued the former minister, they also sued the church. They claimed that the church not only engaged in unlawful sex discrimination and sexual harassment, but also was legally responsible for the former minister's behavior on the basis of respondeat superior, ratification, and negligent hiring. The court rejected all of these claims, and dismissed the women's lawsuit against the church. Its conclusions are summarized below.

Sex discrimination

The women claimed that the church committed unlawful "sex discrimination" in violation of Title VII of the Civil Rights Act of 1964 by dismissing them from employment. To win a sex discrimination case under Title VII, a plaintiff must first prove by a "preponderance of the evidence" a "prima facie case" of discrimination. A plaintiff establishes a prima facie case of sex discrimination by proving: (1) she was discharged; (2) she was qualified for the position; (3) she was within the protected class at the time of discharge; and (4) she was replaced by someone outside the protected class, or otherwise discharged because of her sex. If a plaintiff is successful in establishing a prima facie case of discrimination, the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse employment decision. If the employer demonstrates a nondiscriminatory reason for its adverse employment action, then the presumption is rebutted and the plaintiff must prove that the nondiscriminatory reason was a pretext for discrimination.

The court concluded that the women had failed to demonstrate that the church committed sex discrimination, noting that:

The [women] did not … produce any evidence suggesting that they were fired because of their gender. In fact, the record shows that [the former minister], who also committed adultery, was forced to resign, and that [the church's] position against adultery was neutral with respect to sex, longstanding, and understood by both [women] at the time they engaged in sexual conduct with [the minister].

Key point. Churches are free to dismiss employees for violation of religious standards, so long as such dismissals are not a pretext for unlawful discrimination and "similar cases are treated similarly." In this case, the church avoided liability for sex discrimination since it treated similarly a male and two females guilty of adultery. Further, the church's policy of neutrality in enforcing its moral teachings was "longstanding" and was "understood" by the two women when they engaged in sexual relations with the former minister.

Hostile environment" sexual harassment

Sexual harassment is a form of "sex discrimination" prohibited by Title VII of the Civil Rights Act of 1964. Note that Title VII only applies to employers that (1) have 15 or more employees, and (2) are engaged in interstate commerce. The court in this case assumed that Title VII applied to the church, without any explanation.

Key point. Title VII does not apply to most churches-since most churches have fewer than 15 employees. However, most states have enacted their own civil rights laws that often ban sex discrimination and sexual harassment, and it is much more likely that these state laws will apply to churches. As a result, sexual harassment is a theory of liability that all churches should take seriously.

Key point. Churches with 15 or more employees (full—time or part—time) on their payroll will be subject to Title VII if they are engaged in interstate commerce. Many churches will be deemed by the EEOC and the courts to be engaged in commerce. The United States Supreme Court issued a ruling in 1997 containing a very broad definition of the term "commerce' in the context of a nonprofit religious organization. This case, and the commerce requirement, are discussed in a feature article in the March—April 1998 issue of this newsletter.

A current EEOC regulation entitled "EEOC Guidelines on Discrimination Because of Sex" specifies, in part:

(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

This regulation demonstrates that sexual harassment includes at least two separate types of conduct: (1) "Quid pro quo" harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship, or (2) "hostile environment" harassment, which refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature.

The 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."

"Quid pro quo" sexual harassment

As noted above, sexual harassment also includes unwelcome sexual advances or requests for sexual favors if submission to such conduct "is made either explicitly or implicitly a term or condition of an individual's employment" and "submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual." This type of sexual harassment is called "quid pro quo" sexual harassment. The court rejected the two women's claim that the church had engaged in this form of 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.

Respondeat superior

Under the doctrine of respondeat superior, an employer is legally responsible for the behavior of an employee that occurs within the scope of his or her employment. The court rejected the women's claim that the church was responsible for the former minister's behavior on this basis since there was no evidence that the church had authorized him to engage in marital counseling. The court pointed out that the former minister's "job description and responsibilities as [minister of education] indicate that he was not hired to provide counseling, that he knew that counseling was not part of his job description, that the [minister of education] was not responsible for providing spiritual counseling, and that [the church] had a policy of referring non—pastoral counseling to a licensed professional counselor.

Ratification

The two women asserted that the church was legally responsible for the former minister's behavior on the basis of ratification. That is, the church had "ratified" the minister's actions and therefore was legally responsible for them. The court acknowledged that the doctrine of ratification "imposes liability on an employer when that employer adopts, confirms, or fails to repudiate the unlawful acts of an employee of which the employer is aware." However, the church could not have ratified the former minister's misconduct since it was not aware that he was engaging in counseling.

Negligent retention

Finally, the court rejected the women's claim that the church was legally responsible for their injuries on the basis of negligent retention. The court acknowledged that "an employer that negligently retains in his employ an individual who is incompetent or unfit for the job may be liable to a third party whose injury was proximately caused by the employer's negligence." However, to prove negligent retention, the two women had to show that the church "knew or should have known that [the former minister's] conduct as a supervisor or counselor presented an unreasonable risk of harm to others." The court concluded that there was no evidence that the church "knew or should have known" that the former minister was engaging in marital counseling or that he was likely to engage in sexual misconduct or disclose confidences as a marriage counselor.

Significance of the case to other churches

The court's decision is binding only on other federal courts in the fifth federal circuit (which includes the states of Louisiana, Mississippi and Texas). Nevertheless, decisions by federal appeals courts often are viewed as highly persuasive in other states, and so the case deserves serious attention by all church leaders. The court's discussion of a wide range of liability issues for both ministers and churches reinforces the relevance of this case.

What this means for churches

1. Pastoral liability for sexual misconduct during a counseling relationship. The court reached the following conclusions:

a. Clergy malpractice

The court concluded that ministers who engage in sexual misconduct during a counseling relationship cannot be sued on the basis of "clergy malpractice" since the first amendment bars the civil courts from resolving such claims.

b. Malpractice by a marriage counselor

The first amendment does not bar ministers who engage in marriage counseling that is wholly or partly "secular" in nature from being sued for malpractice as a result of sexual misconduct with a counselee. The court concluded:

[B]ecause the jury found that [the former minister] held himself out as possessing the education and experience of a professional marriage counselor, his counseling activities with the [two women] were judged, not by a standard of care defined by religious teachings, but by a professional standard of care developed through expert testimony describing what a reasonably prudent counselor would have done under the same or similar circumstances.

The court suggested that a minister who engages in marriage counseling that is purely religious in nature may be insulated from liability based on malpractice. However, it concluded that "the first amendment's respect for religious relationships does not require a minister's counseling relationship with a parishioner to be purely secular in order for a court to review the propriety of the conduct occurring within that relationship." In other words, the fact that the former minister occasionally referred to the Bible in counseling sessions that otherwise could be characterized as "essentially secular" did not insulate him from liability based on malpractice.

c. Licensed psychologists

The court suggested that ministers who are licensed psychologists or counselors will be held to a higher standard, and that the first amendment may not bar claims against them for sexual misconduct during a counseling relationship.

d. Breach of fiduciary duty

Ministers who engage in sexual misconduct during a counseling relationship may be sued on the basis of a breach of a fiduciary duty. The court concluded that a fiduciary duty arose in this case because the two women sought out the minister as a marriage counselor. While the court suggested that a purely pastoral counseling relationship may not be "fiduciary" in nature, this was not the case when a pastor holds himself out as a marriage counselor and is sought out in that capacity by church members and others.

Key point. Ministers who engage in sexual contact with a counselee may be guilty of a number of "intentional wrongs" including battery, breach of a fiduciary duty, and intentional infliction of emotional distress. Generally, intentional wrongs are not covered under a church's liability insurance policy, and so a minister who commits such acts may find that he must pay for his own attorney and any portion of a judgment or settlement attributable to his conduct. Further, such acts constitute a criminal offense in several states.

Example. Rev. K is senior pastor at his church. He is not a licensed psychologist or counselor, but he does counsel with church members and occasionally with non—members. He is often sought out for marriage counseling. All of his counseling is based on scriptural rather than secular principles. Rev. K is sued for engaging in sexual misconduct with a counselee. Based on the case addressed in this article: (1) Rev. K would not be liable on the basis of clergy malpractice. (2) He would not be liable for malpractice as a marriage counselor since he did not hold himself out as a marriage counselor. (3) He would not be liable as a secular counselor since he never held himself out as a practitioner of secular counseling. (4) He would not be liable for a breach of his fiduciary duties since no such duty arises in the context of pastoral counseling based solely on scriptural principles. (5) He may be liable for a number of "intentional wrongs" including battery and intentional infliction of emotional distress.

Example. Same facts as the previous example, except that Rev. K represents himself to be a marriage counselor based on both training and experience. Based on the case addressed in this article: (1) Rev. K would not be liable on the basis of clergy malpractice. (2) He may be liable for malpractice by a marriage counselor since he held himself out as a marriage counselor. (3) He would not be liable as a secular counselor since he never held himself out as a practitioner of secular counseling. (4) He may be liable for a breach of his fiduciary duties. (5) He may be liable for a number of "intentional wrongs" including battery and intentional infliction of emotional distress.

Example. Same facts as the first example, except that Rev. K uses mostly secular principles in his counseling, though he occasionally refers to the Bible. Based on the case addressed in this article: (1) Rev. K would not be liable on the basis of clergy malpractice. (2) He may be liable for malpractice as a marriage counselor since his counseling is "essentially secular" despite occasional references to the Bible. (3) He would not be liable as a secular counselor, since he never held himself out as a practitioner of secular counseling. (4) He may be liable for a breach of his fiduciary duties. (5) He may be liable for a number of "intentional wrongs" including battery and intentional infliction of emotional distress.

Example. N is a licensed counselor who is hired by a church to provide counseling to members. He is not a minister. While he occasionally refers to the Bible, his counseling is almost entirely based on secular principles. He engages in inappropriate sexual contact with a female counselee. N can be sued for malpractice as a secular counselor. He also may be liable for a breach of his fiduciary duties and a number of "intentional wrongs" including battery and intentional infliction of emotional distress.

2. Betraying confidences. Church leaders should pay special attention to the court's conclusion that "betraying confidences" obtained in a "relation of trust" (such as a counseling relationship) is a violation of the counselor's fiduciary duties. It is common for ministers to receive confidential information in the course of counseling. This case illustrates the liability that may be incurred in disclosing such information without authorization.

Example. A church employee confesses to her minister that she embezzled church funds. The minister shares this information with the church board without the woman's permission. The minister may be legally responsible for this unauthorized disclosure on the basis of a breach of his fiduciary duties. This assumes that he was in a fiduciary relationship with the woman when he counseled with her. Note that some courts have ruled that the relationship between a minister and counselee is fiduciary in nature, but others have disagreed. In the case addressed in this article, the court ruled that the relationship between a minister and two counselees was fiduciary in nature because he engaged in marital counseling that was essentially secular in nature.

Some courts have concluded that the relationship between a minister and counselee is fiduciary in nature. An example is a 1993 ruling by the Colorado Supreme Court. Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993). In the Moses case, the court acknowledged that the clergy—parishioner relationship "is not necessarily a fiduciary relationship." However, the clergy—parishioner relationship often involves "the type of interaction that creates trust and reliance" and in some cases will constitute a fiduciary relationship.

In summary, ministers who obtain confidential information during counseling sessions need to recognize that they may be deemed to be in a fiduciary relationship with their counselees, and that they may be liable for any unauthorized disclosure of this information on the basis of a breach of their fiduciary duties.

3. Sex discrimination. One of the most important aspects of this case was the court's conclusion that the church did not commit unlawful sex discrimination when it fired the two female employees since it did not treat them any less favorably than it treated the male minister who was sexually involved with them. The court concluded:

The [women] did not … produce any evidence suggesting that they were fired because of their gender. In fact, the record shows that [the former minister], who also committed adultery, was forced to resign, and that [the church's] position against adultery was neutral with respect to sex, longstanding, and understood by both [women] at the time they engaged in sexual conduct with [the minister].

Note that the court mentioned 3 reasons why the church was not guilty of sex discrimination: (1) its policy against adultery was neutral with respect to sex; (2) the policy was longstanding; and (3) the two women understood the policy at the time they engaged in sexual relations with the minister. What about your church? Do you have a policy against extramarital sexual relations by employees? If so, does it meet these conditions? Is it neutral with respect to sex, meaning that it treats men and women equally? Is it a longstanding policy? This is not necessarily a requirement, but it does tend to support the legitimacy of a policy. And, are all employees aware of your policy? If so, how was it communicated to them and could you prove this?

Key point. Churches can discriminate against employees on the basis of religion, but they must be able to demonstrate that religion is not a pretext for discriminating against a protected group of workers. If the church had dismissed the women but not the minister, the religious exemption would not apply.

Example. Rev. B is an associate minister at a church. He has an affair with a female church employee, and the church decides to dismiss the female for her violation of the church's teachings against extramarital sexual relations. The church board decides to retain Rev. B, but warns him that any recurrence of such behavior in the future could result in his dismissal. Assuming that the church is subject to Title VII of the Civil Rights Act of 1964 (15 or more employees, and engaged in interstate commerce), it has committed unlawful sex discrimination by treating a female employee less favorably than a male employee who were both guilty of the same misconduct.

Example. In 1995 a church dismisses a female employee because she was pregnant but unmarried. It based this action on its doctrinal opposition to extramarital sexual relations. In 1998, the church board learns that a married male employee has had a sexual relationship with another woman. It warns him to discontinue the relationship, but does not dismiss him. Assuming that the church is subject to Title VII of the Civil Rights Act of 1964 (15 or more employees, and engaged in interstate commerce), it has committed unlawful sex discrimination by treating a female employee less favorably than a male employee who were both guilty of the same misconduct.

Example. Over the past 20 years, a church has dismissed 3 employees for extramarital sexual relations-two female and one male. The church board was not aware of any other cases of extramarital sexual relations by employees. In 1998 the church dismisses a female employee for extramarital sexual relations. She claims that the church has committed unlawful sex discrimination because it has dismissed 3 women but only 1 man. She will lose-so long as the church can demonstrate that it was aware of only these 4 cases. If the church treats all cases in the same manner, it cannot be guilty of sex discrimination-even if more women are dismissed than men.

Example. Same facts as the previous example, except that the female employee claims she was never informed about the church's policy against extramarital sexual relations. Church leaders acknowledge that the "policy" was never put in writing. They insist that it was so "obvious" that the church would not tolerate such behavior that they did not think that it was necessary to address it in writing. The church may be liable for sex discrimination. In the case addressed in this article the court emphasized the importance of communicating such a policy to employees. If they are not aware of it, how can they be bound by it? It is risky to make assumptions that employees will be aware of the church's unwritten policies and expectations. Churches should reduce such policies to writing, and communicate them with all employees. Ideally, all employees should sign a written form acknowledging their awareness of the policy and their agreement to be bound by it.

4. Sexual harassment in employment. The court's decision provides an excellent overview of the law of sexual harassment. Here are the key points to remember:

• Title VII. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. Only churches with 15 or more employees, and that are engaged in interstate commerce, are subject to Title VII.

• State law. Sexual harassment is a form of sex discrimination prohibited by many state civil rights laws. It is much more likely that such laws will apply to churches, since they often apply to employers with fewer than 15 employees. In addition, there is no interstate commerce requirement.

• Two kinds of sexual harassment. There are two kinds of sexual harassment-"hostile environment" and "quid pro quo." Quid pro quo harassment refers to conditioning employment opportunities on submission to a sexual or social relationship. Hostile environment sexual harassment refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature.

• Intimidating, hostile, or offensive behavior required. Hostile environment sexual harassment requires more than inappropriate behavior. The behavior must be "intimidating, hostile, or offensive." The court concluded that this test was not met, despite the women's claim that the former minister had offended a few other women by complimenting them on their appearances and hugging them.

• Employer liability. Guidelines published by the EEOC specify:

[A]n employer … is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The [EEOC] will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity.

With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.

If the former minister was the church's agent or was a "supervisory employee," the church could have been responsible for his acts of sexual harassment whether or not it knew or should have known they were occurring-even if they were strictly forbidden by the church's policies. It is possible if not likely that a minister of education would be deemed an agent or supervisory employee.

Surprisingly, the federal appeals court was not aware of this rule, and mistakenly assumed that the church could not be liable for the former minister's sexual harassment unless it "knew or should have known" of his behavior.

• Mild criticism not enough. Quid pro quo sexual harassment requires an employee to prove that the harassment affected the compensation, terms, conditions, or privileges of employment, and that acceptance or rejection of the harassment was a condition to the receipt of a job benefit or the cause of a tangible job detriment. The court concluded that the two women failed to meet this requirement: "[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."

5. Ratification. The court acknowledged that the doctrine of ratification "imposes liability on an employer when that employer adopts, confirms, or fails to repudiate the unlawful acts of an employee of which the employer is aware." This is an important observation, for it illustrates that churches can be legally responsible for injuries resulting from their failure to repudiate the unlawful or harmful acts of an employee or volunteer. The court concluded that the church could not be responsible for the former minister's actions on the basis of ratification since it was not aware that he was engaging in counseling and had no evidence of wrongful behavior. On the other hand, the result would have been different had church leaders been aware of the counseling and of wrongful behavior.

Example. Several parents complain to church board members that a youth pastor is engaging in inappropriate contact with minors. The board members do nothing. Over the next few months, the youth pastor molests another minor. The church can be liable for the youth pastor's wrongdoing on the basis of ratification since church leaders were made aware of the pastor's actions but did not respond.

6. Negligent retention. Churches can be legally responsible for retaining a volunteer or employee after receiving information indicating that this person poses a risk of harm to others. However, the two women failed to prove that the church was guilty of negligent retention since they did not establish that the church "knew or should have known that [the former minister's] conduct as a supervisor or counselor presented an unreasonable risk of harm to others." In addition, the court reached the perfectly logical conclusion that a church cannot be liable for negligently retaining a minister who commits adultery with two female employees if the employees themselves, who worked next to each other in the church office, were not aware of the other's relations with the minister. This will be a useful precedent to other churches that are accused, in hindsight, of negligently retaining a minister.

7. The church's lack of knowledge. The court concluded that the church was not aware that the minister of education was engaging in unauthorized marital counseling, despite the fact that (1) on one occasion an associate minister of the church walked into his office and found him alone with one of the two female employees who later filed the lawsuit; (2) the two female employees provided several examples of other women who "felt uncomfortable" around the dismissed minister; and (3) the senior pastor told the minister of education that his car was seen parked outside the home of one of the two female employees.

Key point. Had the church known that the minister was violating church policy by engaging in unauthorized counseling, the court would have found it liable for the minister's wrongful acts on several grounds. This illustrates a critical point-churches that have adopted policies must be sure those policies are being followed. A failure to abide by stated policies can expose a church to significant legal risks. Church leaders should periodically review policies, and assess whether or not they are being followed. If they are not, efforts should be made to immediately begin enforcing them. If this is no longer possible with respect to a particular policy, it should be abandoned.

8. The "what if's?" The church in this case handled matters very well. Consider the following: (1) it thoroughly screened the minister of education before hiring him; (2) church policy prohibited the minister from engaging in counseling; (3) church leaders had no knowledge that the minister of education was engaging in unauthorized counseling or in wrongful conduct; (4) when confronted by the two women with allegations of wrongdoing, the church immediately launched an investigation resulting in a paid leave of absence for the women and a forced resignation of the minister; and (5) the church offered comparable "severance packages" to the two women and the minister, thereby avoiding liability for sex discrimination.

What if any of these factors had not been present? What if the church had not screened the minister when he was hired? What if the church was aware of unauthorized counseling by the minister of education? What if the church was aware of the minister's wrongful acts but took no action against him, or treated the women less favorably than the minister? In any of these situations, the church would have faced potentially significant liability for the minister's wrongful acts.

This case illustrates how a church can meaningfully reduce its exposure to legal risk by how it handles employment decisions. Church leaders should ask themselves this question-if a woman in our church made similar allegations against our minister, would we be as successful in avoiding liability? Or, would we be vulnerable? This case will provide church leaders with helpful guidance in reducing exposure to legal risk.

Sanders v. Casa View Baptist Church, 1998 WL 27291 (5[th] Cir. 1998)

A pair of plaintiffs sued a church and its board president

Does the ministerial exception apply?

Court: Ministerial exception bars hostile work environment claims

What about the release agreement?

What this means for churches

What is consideration, and why is it important?

Background: Employee alleged gender and racial harassment

A lawsuit followed the employee’s termination

What this means for churches

What this means for churches

The appeals court’s ruling

What this means for churches

What this means for churches

Church Agency Not Liable for Nudity in Video as Harassment

What This Means For Churches:

Sexual Harassment

Retaliation

Constructive Discharge

Negligence

What this means for churches

15-Employee Requirement for Churches

What This Means For Churches:

Emotional distress

Sexual harassment (hostile work environment)

Sexual harassment (quid pro quo)

National Church Not Liable for Missionary’s Molestation of a Minor

Sexual Harassment Suit Proceeds Against Local Church, but Not Denomination

Liability of the Conference

Liability of the church—the 15-employee requirement

Sexual Harassment and Church Employees

Sexual Abuse and Church Responsibility

Risks of Pastoral Counseling Services

Sex Offenders and Church Attendance

Church Liability for Sexual Harassment

Negligent Supervision and Sexual Offenses

Facts of the Case

Application to Churches

Background

What this means for churches

Sexual Harassment