• Key point. Sexual harassment is a form of “sex discrimination” prohibited by Title VII of the Civil Rights Act of 1964, and by several state laws. It occurs when (1) an employee’s job or other privileges of employment are conditioned upon submitting to sexual demands, or (2) an employee is exposed to a “hostile work environment” involving unwelcome verbal or physical conduct of a sexual nature that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

• Key point. Title VII only applies to employers that (1) have 15 or more employees, and (2) are engaged in interstate commerce. Accordingly, it does not apply to most churches (it does apply to many denominational agencies engaged in interstate sales).

• Key point. Title VII does not apply to most churches. 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. Employers who dismiss employees for sexual harassment may face wrongful dismissal lawsuits.

A federal court in California ruled that a female minister failed to prove that her denominational agency had engaged in sexual harassment. A woman (the victim) was employed as national director of a department of a denominational agency (the Buddhist Churches of America or BCA). She is ordained as a Buddhist minister. She alleged that in 1991 she began receiving a series of heavy breathing telephone calls at her residence. She says that her phone number was not listed in the local telephone directory, but was published in the BCA directory. She claims that the heavy breathing calls continued for the next few years, even though she changed her unlisted phone number several times. In 1993, she went to an annual meeting of Buddhist minister at a hotel in California. On the first evening of the meeting, after midnight, she was awakened by a telephone call very similar in character and nature to the harassing telephone calls she had been receiving at her home since 1991. The caller spent several seconds breathing heavily and then whispered, “I want you” over and over. The victim asked, “Who is it?” and, when she received no response, hung up the phone. After hanging up the phone, she immediately called the management of the hotel, reported the call and asked if the hotel could identify the caller. The next morning, the hotel management called the victim and told her they had traced the call to another room in the hotel and said they would put the party in that room on the line. A Buddhist minister then came on the line. The minister claimed that he did not place the call and asserted that several people had been in his room. The victim reported the entire incident to her bishop.

After the incident was reported, several meetings were held between the bishop and the victim, the accused minister and other BCA staff members in an attempt to get a complete story and to take responsive action. An investigative report of the incident was rendered by members of a specially designated committee of the BCA. The committee found that the accused minister had attempted “to obscure the truth in a serious investigation while performing as a minister of the BCA.” The report concluded that “sufficient facts supported a finding of misconduct to warrant certain specific sanctions” against the accused minister. A short time later, the victim filed a complaint with the Equal Employment Opportunity Commission (EEOC) regarding the harassing call she had received at the hotel. She was issued a “right to sue letter” by the EEOC, indicating that the EEOC felt she had a viable claim. She later filed a lawsuit in federal court, claiming that (1) BCA engaged in unlawful sex discrimination by paying her less than comparable male employees; (2) she had been a victim of sexual harassment by the actions of the minister and BCA, and (3) BCA had engaged in unlawful “retaliation” against her by cutting off all funding of her department following the filing of her EEOC claim.

Wage discrimination

The court began its opinion by ruling that BCA was an “employer” subject to Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of several factors, including sex. Sexual discrimination includes wage discrimination, sexual harassment, and employer retaliation against employees who exercise their right to be free from unlawful discrimination.

The victim alleged that her position was budgeted at an annual salary of $24,700, but that the bishop told her she would not be paid this amount because a comparable male employee’s “feelings would be hurt.” The court concluded that “a comparison between plaintiff’s salary and the salary of male ministers with the BCA would be improper, as infringing on the church’s autonomy in an area of prime ecclesiastical concern.”

Quid pro quo sexual harassment

The court pointed out that there are two types of sexual harassment-quid pro quo and hostile environment. To prove quid pro quo sexual harassment a plaintiff must show by a preponderance of the evidence that she was forced to choose between an economic loss or an economic benefit by submitting to the sexual demands of a person within the employer’s organization who is in a position to affect her employment. The victim claimed that BCA engaged in quid pro quo harassment by “the defunding of her department because of her refusal to quietly allow [the accused minister] to talk dirty to her.” She claimed that her employment was conditional upon allowing this “sexual favor.” BCA insists that the victim could not have suffered quid pro quo harassment because the accused minister did not hold any position where he had the power to affect the terms of her employment with BCA. BCA also argues that even if the minister held such a position, the contents of the harassing telephone call made at the hotel could not be construed as conditioning job benefits upon the victim’s submission to the minister’s sexual demands. The court agreed with BCA.

[The victim] fails to submit any evidence of a causal connection between the defunding of her department and the allegedly harassing phone call by [the minister]. She does not submit any evidence that [the minister] was involved in the decision to defund her department, or had any influence over the decision at all. Instead, she argues that the action was taken by other members of the BCA organization in retaliation for her filing this suit. A quid pro quo action, however, is premised upon coercive sexual conduct. Without evidence that BCA’s retaliation in defunding [the victim’s] department was somehow influenced by [the minister], [she] cannot present a … case of quid pro quo harassment.

Hostile environment sexual harassment

The court noted that to support a “hostile work environment” claim of sexual harassment, a plaintiff must show that: (1) she was subject to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Further,

[w]hether the conduct complained of by a plaintiff was sufficiently pervasive to create a hostile work environment is determined by the totality of the circumstances. Factors which the court may consider in evaluating the totality of the circumstances include (1) the frequency of the offensive encounters; (2) the severity of the offensive conduct; (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interfered with the employee’s work performance.

The court acknowledged that the United States Supreme Court has taken a “middle path” approach to hostile environment claims by noting that “coworkers’ occasional annoying or merely offensive comments do not create a hostile environment.” The court noted that most of the harassing telephone calls occurred at the victim’s home, and not at work. However, the one call she received at the hotel arguably could be construed as “work related” since she was attending a convention. The court pointed out that this one work—related call

was not physically threatening or humiliating. It was not repeated at plaintiff’s place of employment and was not accompanied by any other sexual conduct in the workplace. Moreover, the alleged co—employee who made the phone call was not a person who plaintiff was forced to work with on a daily basis …. This single isolated incident does not rise to the level of seriousness required to establish an abusive working environment.

The victim also claimed that her employer (BCA) created a hostile environment by (1) failing to follow up on an earlier charge of sexual harassment made by another employee; (2) failing to require the accused minister to follow through with the imposed sanctions; (3) failing to conclude that the accused minister’s misconduct constituted sexual harassment; (4) defunding her department after she filed a complaint with the EEOC. The court disagreed that these allegations proved that BCA had committed hostile environment sexual harassment.

Although [the victim’s] evidence suggests that BCA’s response to [the accused minister’s] conduct was dilatory at best, this evidence, standing alone, does not create a hostile environment claim. Although employers are liable for failing to remedy or prevent a hostile or offensive work environment of which management—level employees knew, or in the exercise of reasonable care should have known, an employer’s lack of remedial action is not itself evidence of the hostile work environment. A hostile environment claim requires wrongful verbal or physical conduct of a “sexual nature.” Thus, although the action or inaction of an employer in response to an allegation of sexual harassment may be probative on the issue of the employer’s liability, this evidence is relevant only if the plaintiff first establishes that that incident created a hostile work environment. Because [the victim] has failed to make this … showing [a dismissal] of this claim is proper.

Retaliation

Finally, the victim claimed that the decision by BCA to cut off funding of her department amounted to unlawful retaliation for filing a sex discrimination claim in violation of Title VII. The court noted that to prove a “prima facie case” of unlawful retaliation, a plaintiff must establish that she acted to protect her Title VII rights, that an adverse employment action was thereafter taken against her, and that a connection exists between these two events. At that point, the burden of production then shifts to the employer to advance legitimate, non—retaliatory reasons for any adverse actions taken against the plaintiff.

The court concluded that it could not resolve the victim’s retaliation claim, since

[i]f plaintiff makes out a prima facie case of retaliation, the court would be placed in the position of evaluating whether BCA had any legitimate, non—retaliatory reasons for the defunding of [her] department …. Although the financial decisions of a church are not, strictly speaking, part of the church’s “spiritual function,” these decisions remain vital to a religious organization’s ministerial and religious planning. Determining whether the decision to eliminate funding from [the victim’s] department-a religious education department-was “legitimate” seems likely to draw this court into judgments on matters of faith and doctrine, as well as matters of general church governance. Because it appears that plaintiff’s retaliation claim would result in “an intolerably close relationship between church and state both on a substantive and procedural level,” plaintiff’s retaliation claim is dismissed without leave to amend, on first amendment grounds. Himaka v. Buddhist Churches of America, 917 F.Supp. 698 (N.D. Cal. 1995). [ Title VII of the Civil Rights Act of 1964]

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