Employer Not Liable for Man’s Rape of Coworker

Employers are only liable on the basis of negligent hiring if the worker’s act was foreseeable.

Bio

State: South Carolina
Categories: Denominations - Legal Liability, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key Point 10-05. A church may be liable on the basis of negligent selection for a worker's molestation of an adult if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Key Point 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

Key Point 10-05.3. Churches can reduce the risk of liability based on negligent supervision for sexual misconduct involving adult victims by adopting risk management policies and procedures.

A South Carolina court ruled that an employer's knowledge that an employee had been convicted six years earlier for the misdemeanor offense of publicly exposing himself in a park did not make it foreseeable that the employee would rape a coworker, and therefore the employer was not liable on the basis of negligent hiring for the employee's assault. A male employee ("Mark") at an assisted living center for the mentally disabled raped a co-employee (the "plaintiff") while at work. The plaintiff sued her employer, claiming that it had been negligent in hiring Mark, and that its negligence resulted in the assault. When it hired Mark, the employer ran a criminal background check. The background check revealed one misdemeanor charge for disorderly conduct as a result of exposing himself in a public park, and one speeding violation. As company policy, the employer relies on self-disclosure by its employees to report any criminal convictions that occur after an employee is hired. Mark did not inform his employer of any criminal convictions after being hired. During his five years of employment, Mark was accused on two occasions of sexually molesting a patient. Both accusations were investigated, and later dropped due to a lack of evidence. Mark was allowed to continue his employment without restriction.

The employer asked the court to dismiss the plaintiff's lawsuit on the ground that there was no evidence that Mark would sexually assault a co-worker. In opposition, appellant argued that, and so it had not been negligent in hiring, supervising, or retaining him. The court agreed with the employer, and dismissed the lawsuit. The plaintiff appealed.

On appeal, the plaintiff argued that although the employer performed a criminal background check, it did not conduct any additional inquiry or investigation to discover that Mark's conviction for disorderly conduct was sexual in nature. She cited a detective's testimony that the disorderly conduct conviction was for public exposure in a public park that "is known for sexual activity."

The court began its opinion by noting that "in a negligent hiring context, a plaintiff must show at a minimum, that the employer knew, or should have known, of the employee's criminal propensities. When determining the foreseeability of a criminal act, a court must look at the totality of the circumstances, and only when the circumstances are somewhat overwhelming can an employer be held liable."

Criminal records check

The court concluded that the plaintiff had failed to prove that Mark's assault was reasonably foreseeable.

Before hiring him, the employer performed a criminal background check through the Ohio Bureau of Criminal Investigation. His conviction for disorderly conduct was included on the BCI report. The plaintiff argues that the employer should have conducted periodic background checks while Mark was employed. However, there is no evidence that any additional crimes would have shown up on these reports nor does appellant present any evidence that he actually committed any crime while he was employed.

In rejecting the plaintiff's claim that Mark's conviction for disorderly conduct made her rape foreseeable, the court noted that Mark's act of exposing himself in the public park "was not a physical assault that would demonstrate to his employer that he would potentially rape a fellow employee …. It would be quite a stretch to suggest that his disorderly conduct charge from 1999 demonstrates that he would be likely to commit a rape in 2005."

The two previous accusations

The court also rejected the plaintiff's claim that the two prior accusations of sexual misconduct made her rape foreseeable, and therefore the employer was liable on the basis of negligent hiring:

The plaintiff notes that the allegations were found to be "unsubstantiated," but implies that the assault actually occurred and shows that the rape was foreseeable. Her argument is unpersuasive. Both the [local and county] police investigated the matter and concluded that the allegation was unfounded. The resident had a history of making false allegations. Further, Mark had four years of experience at the time of the allegation with no prior allegations of abuse and passed a lie detector test. There is no evidence that the employer acted unreasonably during the situation.

Mental health issues

The plaintiff noted that a detective had informed the employer, prior to the rape, that she found Mark to be "odd," and that he was not taking his medicine for borderline schizophrenia and bipolar disorder. Further, the plaintiff claimed that Mark took an FMLA leave-of-absence for these issues. The plaintiff concluded that the employer should have conducted an independent evaluation of Mark's mental health before allowing him to return to work. The court disagreed, noting that "this does not show foreseeability of the rape." To the contrary, the employer testified that she never saw any signs that Mark was mentally unstable or threatening in any way. Even if he was suffering from these disorders, "there is no evidence that they would make him violent or prone to commit a sexual assault. Further, his doctor released him to return to work without restriction following his FMLA leave. Accordingly, the plaintiff fails to demonstrate that a genuine issue of material fact exists regarding negligent hiring, supervision or retention.

Application. This case is instructive for the following five reasons. First, the court correctly noted that an employer generally cannot be liable on the basis of negligent hiring for an employee's criminal act unless the act was reasonably foreseeable based on what the employer knew or in the exercise of reasonable care should have known.

Second, the court concluded that an employee's misdemeanor conviction for public exposure in a park did not make it foreseeable that the employee would rape a coworker six years later, even if the park had a reputation for illegal sexual activity. In particular, the court noted that Mark's act of exposing himself in the public park "was not a physical assault that would demonstrate to his employer that he would potentially rape a fellow employee …. It would be quite a stretch to suggest that his disorderly conduct charge from 1999 demonstrates that he would be likely to commit a rape in 2005."

Third, the court concluded that the employer's failure to conduct periodic criminal background checks on Mark did not make it negligent, since "there was no evidence that any additional crimes would have shown up on these reports" and there was no proof that Mark "committed any crime while he was employed."

Fourth, the court concluded that the two previous accusations of sexual misconduct against Mark did not make his subsequent rape of the plaintiff foreseeable, since (1) those accusations were investigated by local and county police and adjudged to be unsubstantiated, and (2) the purposed victim had a reputation for making false accusations.

Fifth, Mark's mental health problems did not make his rape of the plaintiff foreseeable, and therefore the employer could not be liable on the basis of negligent hiring. Prewitt v. Alexson Services, Inc., 2008 WL 3893575 (Ohio App. 2008).

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

Legal Developments

Reporting Sexual Misconduct to Future Employers

Churches are not generally required to warn future employers of an individual’s sexual misconduct.

Richard R. Hammar, Attorney, CPA

Bio

State: Wisconsin
Categories: Denominations - Legal Liability, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key Point 8-24. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.

The Wisconsin Supreme Court unanimously ruled that a church does not have an affirmative duty to warn future employers that one of its ministers had molested several boys. Five adult males (the "plaintiffs") alleged that they were sexually abused by a priest from 1968 to 1973 when he was employed as a teacher by a parochial school in Kentucky.

The plaintiff's lawsuit described an ongoing pattern of sexual abuse of children by the priest over the years. The plaintiffs allege that prior to 1964, he had engaged in inappropriate sexual conduct while at a Catholic seminary; that between 1964 and 1966, he abused more than two dozen children while a teacher at a Wisconsin parochial school; that he subsequently admitted to sexually abusing up to ten more children at another Wisconsin parochial school; and that the pattern of sexual abuse continued while he was a teacher at the parochial school in Kentucky. The plaintiffs sued the Wisconsin diocese (the "Diocese"), claiming that it "knew or should have known of the priest's propensity for sexually abusing children and, despite this knowledge, did not refer him to the police or take any other action to prevent him from continuing his pattern of sexually abusing children." The lawsuit further alleged that the failure of the diocese to refer the priest to the police or to take "other action to prevent a continuation of his pattern of sexually abusing children" amounted to negligence, and that the diocese's negligent conduct was a substantial factor in causing the priest's sexual abuse of and resulting injuries to the plaintiffs. The plaintiffs specified that such negligence in failing to take other action specifically included a negligent failure to warn "unforeseeable third parties," including "other dioceses within the United States, the parochial school systems or the parents of unforeseeable victims" of the priest's propensity for sexual abuse.

The court noted that the plaintiffs' negligence claim "is premised on an alleged failure to warn unforeseeable third parties, including any potential future employers of the priest at dioceses and parochial school systems everywhere in the country, as well as parents of unforeseeable victims."

The Diocese insisted that the law does not "impose a duty on employers to seek out and disclose information to an employee's subsequent employers or the public at large concerning a former employee's history of misconduct or antisocial behavior," and that under the legal theory of negligent referral or duty to warn "unless an employer gives a favorable reference to a subsequent employer or third party about the former employee while withholding negative information, there is no breach of duty established by the employer's failure to seek out subsequent employers and alert them to prior negative history of the former employee."

The supreme court concluded:
The Diocese's mere knowledge of the priest's past sexual abuse, or a presumed knowledge of a continued sexual propensity for abuse, is not enough to establish negligence. Reasonable and ordinary care does not require the Diocese to notify all potential subsequent employers within dioceses and parochial school systems across the country, along with all parents of future unforeseeable victims. Requiring such notification under these circumstances would create a vast obligation dramatically exceeding any approach to failure to warn recognized either in this state or in other jurisdictions ….

More importantly, in this case, the specific victims were unforeseeable. Foreseeability of specific victims becomes relevant when an affirmative obligation is argued, such as the obligation to warn. Moreover, the Diocese did not assume a special role in regard to the injured parties ….

The plaintiffs in this case had virtually no relationship with the Diocese. There are significant gaps temporally and geographically, with the plaintiffs separated from the Diocese by several state lines and their abuse separated from the priest's employment with the Diocese by a number of years, and the complaint never indicated that their paths crossed at all prior to the plaintiffs filing this action. Thus, the relationship between the parties in this case is quite attenuated.

There is no state in which employers are recognized as being negligent for failing to seek out, find, and warn future employers of sexually dangerous former employees. Even those states that have recognized a negligent referral doctrine do not impose liability when a referral letter is sent by a past employer to a future employer of such an employee unless actual misrepresentations are made in such a letter. See Randi W., 929 P.2d at 584 [fully addressed in section 8-24 of Richard Hammar's Pastor, Church & Law (4th ed. 2008)].

Thus, we conclude that the plaintiffs' complaint fails to allege negligence sufficiently to survive a motion to dismiss. Although the plaintiffs allege that the Diocese knew that the priest had a propensity for sexual abuse, what is more pertinent is what the plaintiffs did not allege. They did not allege that the Diocese knew that he was in Kentucky, still teaching children, or working for the Archdiocese in Louisville. They did not allege any knowledge that the children at the [parochial school in Kentucky] were in any danger. They did not allege that the Archdiocese of Louisville asked the Diocese for a reference, that the Diocese made a reference recommending the priest, or that the Diocese had any communication whatsoever with the Archdiocese of Louisville regarding the priest.

The plaintiffs also fail to provide legal authority supporting their arguments. They argue that the duty of ordinary care in this case encompasses a specific obligation to warn all parochial schools and dioceses in this country, as well as future parents of unforeseeable victims, but have cited no cases in which the failure to warn third parties has been described in such sweeping terms ….

We decline to rule that under the general duty of ordinary care recognized in Wisconsin, an employer may be found negligent for failing to warn unforeseen third parties of a dangerous former employee. Such a ruling would extend an employer's obligation to warn indefinitely into the future to a sweeping category of persons, thereby requiring employers to warn nearly all potential future employers or victims, as the plaintiffs in this case argue. … A decision to the contrary would create precedent suggesting that employers have an obligation to search out and disclose to all potential subsequent employers, which could include in an employment context every school in the country or beyond, all matters concerning an ex-employee's history …. The primary public policy problem with recognizing the claim as presented by the plaintiffs is that there is no sensible stopping point to recognizing negligence claims for such an open-ended and ill-defined sweeping claim. Recognizing the plaintiffs' claim against the Diocese in this case could result in requiring all employers to warn all unforeseen potential future employers of any number of problems related to any number of past employees. It could further result in all parents who become aware that their child was sexually abused then facing potential liability for not warning every other parent who might also have children at risk of being in contact with the perpetrator.

Application. This case is significant because it addresses the fundamental question of a church's duty to affirmatively warn future employers and potential victims of a former employee's propensity to engage in sexual or other misconduct. The relevance of the case is augmented by the fact that (1) it was a ruling by the Wisconsin Supreme Court; (2) it was a unanimous ruling; and (3) it represents the most extended discussion of this issue in any case involving a religious organization.

Note that the court suggested that its ruling might not relieve churches from liability for providing positive, unqualified references on former employees who committed sexual or other misconduct, or for failing to warn other churches where it knows such former employees are working. But, there is no affirmative duty to track former employees in order to give notice to all future employers and potential victims of the risk they face. It should also be noted that churches may face civil liability on the basis of "interference with contract" for gratuitously warning future employers of a former employee's previous misconduct if a reference was not requested and results in the employee's dismissal. Hornback v. Archdiocese of Milwaukee, 752 N.W.2d 862 (Wis. 2008).

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

Legal Developments

Evidence of Subsequent Corrective Action

Evidence of remedial action taken after an event is generally not admissible in court.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Denominations - Legal Liability, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key Point Generally, evidence of corrective or remedial actions taken after an accident or injury are not admissible in evidence to prove negligence, since this would discourage persons from correcting dangerous conditions.

A Connecticut court ruled that a sexual abuse victim could not obtain copies of all sex abuse training materials used or distributed by a Catholic diocese in a lawsuit he brought against the diocese. A Catholic diocese was sued by a person (the "plaintiff") who allegedly was sexually abused by a priest in 1978. The plaintiff requested copies of "any and all sexual abuse training materials" that were "distributed or utilized within the diocese." The plaintiff claimed that post-1978 materials were relevant since they would tend to show preventative actions that could have been taken in 1978 and before, and that they would "tend to show later corrective action and that at some point the diocese was assuming responsibility for discovering and preventing such wrongdoing."

Connecticut Rule of Evidence § 4-7(a) provides that "evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event." The court explained that "the rule barring evidence of subsequent repairs in negligence actions … presupposes that to admit evidence of subsequent repairs to an identified hazardous condition as proof of negligence penalizes the defendant for taking remedial measures. This discourages [persons] from repairing hazards, thereby perpetuating the danger. This policy fosters the public good by allowing persons to repair hazards without providing proof of negligence."

The court concluded that in this case the rule "prohibits evidence which tends to show subsequent preventative actions that could have been taken in 1978 and before; or which tends to show later corrective action …. Later sexual abuse training materials do not appear to be reasonably calculated to lead to the discovery of admissible evidence."

Application. Victims of sexual misconduct often subpoena sexual abuse training materials in lawsuits brought against a church or other entity in which the misconduct occurred. This case suggests that churches may be able to object to such requests on the ground that they seek evidence of subsequent corrective action that is generally inadmissible in a negligence lawsuit. 2008 WL 4925980 (Conn. Super. 2008).

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

Legal Developments

Youth Pastor Jailed for Sexual Misconduct

Acts of sexual misconduct by clergy carry severe consequences.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Denominations - Legal Liability, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key Point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

A Washington state court affirmed the conviction and 15-year prison sentence of a youth pastor who engaged in a sexual relationship with a member of the church youth group. Eric was the youth minister at a church and also taught at the church's school. On six occasions he had sexual intercourse with a member of his youth group (the "victim") who also attended the church school. Eric communicated with the victim via computer and the telephone. While communicating via the computer, he persuaded the victim to undress.

He then viewed her through a webcam. The victim later reported the incident to her mother, and she also disclosed their sexual relationship. The mother immediately reported the incidents to the police. The State charged Eric with six counts of first degree sexual misconduct, one count of communication with a minor for immoral purposes, and one count of sexual exploitation of a minor. A digital forensic specialist with the sheriff's office testified that he was able to recover chat logs and emails from Eric's and the victim's computers. The chat logs indicated that Eric was viewing webcam images. He explained a webcam picture is captured and then transmitted to the designated computer, but he could not recover the web camera pictures from Eric's computer because Web camera transmissions are viewed almost instantaneously rather than downloaded to the computer.

The court convicted Eric as charged, and the court imposed an exceptional sentence, running the 60-month sentence for the six counts of first degree sexual misconduct consecutive with the 120-month sentence for sexual exploitation of a minor. The court concluded "a standard range sentence is too lenient under the facts and circumstances of this case." The court also concluded that Eric was in a position of trust during the abuse of the victim. On appeal, Eric claimed that there was insufficient evidence to support his sexual exploitation of a minor conviction. He alleged that there was no evidence that he compelled the victim to "photograph" herself because a Webcam viewing is not considered a photograph. Under Washington law, a person is guilty of sexual exploitation of a minor if he or she: "aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance." State law defines a "photograph" as a "print, negative, slide, digital image, motion picture or videotape. It includes anything tangible or intangible produced by photographing."

The court noted that "the legislature intended to draft the statute as broadly as possible to encompass any technology by which photographs containing child pornography could be reproduced and distributed." It concluded that interpreting the term "photograph" as broadly as possible to encompass any technology containing child pornography, "the sexually explicit acts viewed by Eric over his Webcam would be considered a photograph for purposes of [the statute]. A Webcam viewing would be characterized as an intangible digital image. Therefore, sufficient evidence exists to support the exploitation conviction."

Application. There are an array of legal consequences that often accompany acts of sexual misconduct by clergy. These include personal civil liability, liability for their employing church based on negligence or other grounds, and, as this case illustrates, possible criminal liability. The youth pastor in this case was sentenced to 15 years in prison for the relationship that he had with the victim. Five years of this sentence was for the acts of sexual intercourse. The remaining ten years was for "photographing" the victim with her Webcam. 2009 WL 473657 (Wash. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

Legal Developments

YMCA Ordered to Pay “Future Mental Anguish Damages”

Organization held liable for negligent selection for a worker’s molestation of a camper.

Richard R. Hammar, Attorney, CPA

Bio

State: Texas
Categories: Denominations - Legal Liability, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key Point 10-04. A church may be liable on the basis of negligent selection for a worker's molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

The Texas Supreme Court upheld a jury award of $500,000 for mental suffering in a case involving the sexual molestation of a minor by a counselor at a YMCA summer camp. A 9-year-old boy (the "victim") was sexually molested by his counselor while attending a YMCA summer camp. The counselor was arrested and later confessed to sexually inappropriate conduct with a number of the young campers, including the victim. He claimed that the abuse occurred while both he and victim were fully dressed. The victim did not reveal the incident to his parents, who learned about it as a result of the counselor's confession.

The victim's parents sued the YMCA for negligently hiring, retention, and supervising the perpetrator. The jury found that the abuse caused the child serious mental injury and awarded "future" mental anguish damages of $500,000. The state supreme court affirmed this verdict, rejecting the YMCA's claim that there was insufficient evidence of future mental anguish. The court acknowledged that the victim testified that he had placed the incident "in a vault" in his mind. An expert witness testified that the victim's reference to putting the incident "in a vault" meant that he was using denial as a temporary coping mechanism, which is a common response to childhood sexual abuse. Other expert witnesses testified to other short and long-term effects that sexual abuse has on child victims, including poor performance in school.

One expert witness testified that trauma the victim experienced would not simply disappear but would have to be processed in some manner when he was ready, which may not happen for many years. In many cases where the victim "in-capsulates" the incident in a vault, as the victim had done, there is an "enormous reaction" when that vault opens later in life. The evidence further showed that, while the victim appeared to be functioning well, "children who have been sexually abused are often not diagnosed with depression or anxiety until they are adults in their thirties, forties, and fifties."

The court concluded: "We have recognized the consensus among experts that child victims of sexual abuse frequently repress and suppress memories and emotions associated with the event until their adult years." Adams v. YMCA of San Antonio, 265 S.W.3d 915 (Tex. 2008).

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

Legal Developments

Off-Premises Sexual Misconduct

Employer not liable for employees’ off-premises sexual assault.

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Off-Premises Sexual Misconduct

Employer not liable for employees’ off-premises sexual assault.

Richard R. Hammar, J.D., LL.M., CPA

Key point. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

A federal court in Connecticut ruled that an employer could not be liable for an employee’s unforeseeable, off-premises sexual assault even though the employee’s employment application disclosed a prior conviction for statutory rape. An adult male (“Michael”) applied for a position at a FedEx Kinko’s store. On his employment application, he disclosed that he had been convicted of a felony. Specifically, he wrote: “1989 equivalent to statutory rape.” During a pre-employment interview, Michael explained that when he was 18 years old, he had been arrested after the father of his 17-year-old girlfriend learned of their sexual relationship.

After the interview, a store manager submitted Michael’s name for a background check by General Information Services (“GIS”). Pursuant to an agreement between FedEx Kinko’s and GIS, GIS searched for Michael’s felony convictions within seven years from the time of the employment application. This search did not reveal that he had a 1989 conviction for unlawful sexual contact with minor boys in the State of Maine. As a result, Michael passed the background check, and therefore, GIS rated him as suitable without further information. He was hired by FedEx Kinko’s as a production operator.

Shortly after he was hired, Michael met a female customer (Ms. Doe) and her two minor sons. He spoke with the mother about his computer skills, and gave her a calling card for his personal computer-repair services business. Ms. Doe told Michael that she needed help with her home computers and gave him her home address. She understood that his computer-repair business was unrelated to the business of FedEx Kinko’s.

During the next nine months, Michael visited the Doe home for the purpose of repairing computers for the family. He also provided some unpaid math tutoring to the two Doe sons, and offered to take them kite flying. One day, Ms. Doe left Michael alone with her two sons while she went to the grocery store. While she was out of the house, the younger son was sexually assaulted by Michael. That same day, the victim told his mother what had happened, and she immediately called the police. Michael was thereafter arrested.

Ms. Doe sued FedEx Kinko’s, alleging that it was legally responsible for Michael’s acts on the basis of negligent hiring. FedEx Kinko’s insisted that it could not be liable since Michael’s acts all occurred off of its premises and they were not related to his employment.

The court noted that “the first essential element of a negligence cause of action is the existence of a duty of care owed by a defendant.”

It noted that Restatement (Second) of Torts § 317 (a respected legal treatise) provides that an employer has no duty to control the conduct of an off-duty employee “except when the complained-of conduct occurs on the employer’s premises, utilizes property of the employer’s, or the employer knows or has reason to know that it can control the employee and recognizes the necessity of so doing.” The court noted that these exceptions “reflect that a duty may only be imposed on the employer where the harm is foreseeable and there exists the ability and necessity for the employer to control the employee.”

Ms. Doe asserted that FedEx Kinko’s had a duty because it had been informed of Michael’s previous statutory rape conviction. The court disagreed:

Despite the fact that Michael had informed FedEx Kinko’s that he had a prior conviction for conduct equivalent to statutory rape, FedEx Kinko’s could not foresee that hiring him as a production manager, a position that does not entail intimate contact with members of the public or vulnerable individuals, would gain access to a family’s home and the opportunity to sexually abuse a child. The conversation between Ms. Doe and Michael concerning his skills and her computer needs led to her hiring him and allowing him into her home. However, this communication concerned subjects extrinsic to his performance as a FedEx Kinko’s employee and could not be anticipated. Similarly, FedEx Kinko’s could not reasonably foresee that hiring Michael would lead to his interaction with the Doe children absent the presence of the parents or another supervisory adult. There is no evidence that FedEx Kinko’s should have known that it could have controlled his behavior off-site or that it should have recognized the necessity of doing so.

Application. This case is relevant for the following reasons:

First, the court concluded that FedEx Kinko’s could not be liable for Michael’s sexual misconduct on the basis of negligent hiring, despite his admission on his employment application that he had a prior statutory rape conviction, since liability based on negligent hiring requires foreseeable harm and it was not foreseeable that Michael, in his position as a production manager, would have the opportunity to molest minors.

Second, it is worth noting that FedEx Kinko’s conducted a national criminal records check on Michael that did not pick up his prior felony conviction because it only checked records within seven years of the date of the employment application. This underscores a common limitation of many criminal records searches. By only examining records for a specified number of years, they are omitting potentially relevant information that might suggest that an applicant poses a risk of harm to others. It is for this reason that church leaders should not select any criminal records search service without an understanding of all the limitations that apply. Once the limitations are known, a church can check with several other charities (the local public school district, scouting organizations, and other youth serving charities) to determine which criminal records search services they utilize, and how far back to these other services examine criminal records, and in which states? By aligning your practice to that of other reputable charities you are helping to demonstrate that you acted with reasonable care and were not negligent.

Third, the court referenced the general rule that employers cannot be legally responsible for the acts of their employees off of the employer’s premises except in limited situations. These include off-premises injuries caused by an employee utilizing employer-owned property (such as a vehicle), or those situations in which an employee poses a foreseeable risk of harm to others and the employer “has reason to know that it can control the employee and recognizes the necessity of so doing.” Doe ex rel. Doe v. Federal Exp. Corporation, 571 F.Supp.2d 330 (D. Conn. 2008).

This Recent Development first appeared in Church Law & Tax Report, March/April 2009.

Legal Developments

Segregation of Damages

If this principle applies, exposure to monetary damages in sexual misconduct claims may be reduced.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Segregation of Damages

If this principle applies, exposure to monetary damages in sexual misconduct claims may be reduced.

Richard R. Hammar, J.D., LL.M., CPA

Key point. Juries generally cannot assess monetary damages against two or more organizations for the same wrong. If a jury determines that a personal injury victim has suffered damages of a specified amount, it cannot assess this amount separately against more than one defendant since doing so would result in duplicate verdicts.

A federal appeals court ruled that juries, in assessing monetary damages in sexual misconduct claims, must “segregate” the church’s damages based on negligence from the perpetrator’s damages based on intentional or criminal acts. A church member sued his church and a staff member who sexually molested him. During the trial, the court instructed the jury to segregate damages caused by the perpetrator’s intentional acts from damages caused by the church’s negligence. The jury returned a verdict finding the church liable for only a small portion of the amount that was assessed against the perpetrator. The victim appealed, asking the appeals court to reverse the trial court’s order segregating damages, thereby allowing the church to be assessed the full amount of the damages. A federal appeals court, applying Washington law, affirmed the trial court’s order.

The court noted that the Washington Supreme Court had previously ruled that under Washington law damages resulting from intentional acts must be segregated from those resulting from negligence, and negligent defendants can be held jointly and severally liable only for the damages resulting from their negligence. Tegman v. Accident & Medical Investigations, Inc., 75 P.3d 497 (2003), citing Washington Revised Code 4.22.070. The Washington Supreme Court stressed that a negligent party “could not be held liable for any damages due to intentional acts.”

Application. Most if not all acts of sexual misconduct involve intentional acts by the perpetrator. When the perpetrator is a church employee or volunteer, the church may be liable on the basis of negligence in selecting, supervising, or retaining the wrongdoer. In many cases, juries assign greater culpability, and monetary damages, to the wrongdoer, and lesser culpability and damages to the negligent church. As this case demonstrates, some states require the segregation of damages, meaning that negligent parties cannot be assessed monetary damages based on the wrongdoer’s intentional acts. This is a significant principle, since in most cases those who commit acts of sexual misconduct lack the means to pay their share of a jury verdict. In many states, churches that are found to have been negligent in selecting, supervising, or retaining the wrongdoer can be forced to pay the full amount of damages assessed by the jury, even that portion that was allocated to the wrongdoer’s intentional acts. Church leaders should be familiar with the principle of segregation. If it applies, it may significantly reduce a church’s exposure to monetary damages in sexual misconduct cases involving intentional acts. Fleming v. Church of Latter Day Saints, 275 Fed.Appx. 626 (9th Cir. 2008).

This Recent Development first appeared in Church Law & Tax Report, March/April 2009.

Legal Developments

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

Churches liable for employees’ misdeeds if they were negligent in selecting, retaining or supervising staff members.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law & Tax Report

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

Churches liable for employees’ misdeeds if they were negligent in selecting, retaining or supervising staff members.

Richard R. Hammar, J.D., LL.M., CPA

Key Point 10-05. A church may be liable on the basis of negligent selection for a worker’s molestation of an adult if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Key Point 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

A federal court in Kentucky ruled that a national church was not liable on the basis of negligent hiring or supervision for the sexual molestation of a minor by one of its missionaries since it exercised sufficient care in evaluating the missionary’s fitness for service when he was selected. An adult male (the “defendant”) was selected by a national church as a missionary following a rigorous vetting process that included: (1) a detailed application form; (2) an initial interview with his local pastor regarding his worthiness to serve, qualifications, and physical and emotional capability to serve; (3) a second, more detailed interview with his local pastor that included questions about his sexual history and any attraction to or improper conduct with children; (4) a third interview with a regional church official to determine his fitness to serve, sexual history, and attraction to children; (5) an evaluation of all the evidence by the national church’s missions department; (6) a missionary training school that lasted for two months that covered numerous topics including the importance of avoiding any form of sexual conduct outside of marriage; (7) periodic interviews following his appointment as a missionary with missions officials regarding his continuing fitness to serve. No evidence surfaced during any of these interviews that gave missions officials the slightest concern regarding the defendant’s fitness to serve, or any propensity to molest children.

The girl’s mother sued the national church … on the basis of negligent hiring and supervision.

Despite all of these precautions, the defendant sexually molested a teenage girl. The girl’s mother sued the national church, alleging that it was responsible for the defendant’s behavior on the basis of negligent hiring and supervision. The court noted that “an employer can be held liable when its failure to exercise ordinary care in hiring or retaining an employee creates a foreseeable risk of harm to a third person.” Was the defendant’s behavior foreseeable? No, the court concluded:

The evidence of record of this matter demonstrates that the [national church] required candidates for its missionary program to complete an involved application process and undergo multiple levels of screening by various church officers. The evidence further reveals that missionaries, once selected, continued to meet regularly for interviews with church officers during their tenure in the missionary program. Finally, the unrefuted evidence shows that [the national church] did not receive information at any time during the application or training process or prior to [the defendant’s misconduct] that would lead them to believe that he had ever or would ever commit a sexual act with a child. Plaintiff has marshaled no evidence to suggest that the [national church] knew or should reasonably have known that he was somehow unfit to serve as a missionary or that his placement or retention of a missionary created an unreasonable risk of harm to [the victim] or that any such information came to light prior to the [church] learning of the events alleged [in this case] at which time the church terminated his service as a missionary

Application. This case illustrates an important point. Churches are not guarantors of the conduct of their employees and volunteers. Rather, they are liable to the misdeeds of such persons only if they were negligent in selecting, retaining, or supervising them. In this case, the extensive screening conducted by the church resulted in the court’s denial of the victim’s allegation of negligence. Olinger v. Corporation of the President of the Church of Jesus Christ of Latter- Day Saints, 521 F.Supp.2d 577 (E.D. Ky. 2007).

* See also “Sexual harassment,” 2007 WL 3170999 (D. Or. 2007), in the recent developments section of this newsletter. Despite all of these precautions, the defendant sexually molested a teenage girl.

This Recent Development first appeared in Church Law & Tax Report, November/December 2008.

Legal Developments

Missionary Molests Minor: Is the National Church Liable?

Court rules that crime was not reasonably forseeable.

Richard R. Hammar, Attorney, CPA

Bio

State: Kentucky
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key Point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.

Key Point 10-10.2. Many courts have ruled that the first amendment prevents churches from being legally responsible on the basis of negligent supervision for the sexual misconduct of ministers.

Key Point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of first amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.

A federal court in Kentucky ruled that a national church was not liable for a missionary's sexual molestation of a minor. A mother sued a national church claiming that one of its missionaries sexually molested her minor son. She alleged that the church was liable for the missionary's acts on the basis of negligent selection and supervision. The court noted that "an employer can be held liable when its failure to exercise ordinary care in hiring or retaining an employee creates a foreseeable risk of harm to a third person." It concluded that the national church was not negligent since the missionary's wrongful acts were not foreseeable:

The mother insisted that the national church was negligent in supervising the missionary as a result of provisions in its missionary handbook forbidding sexual misconduct of any kind, and urging missionaries to avoid being alone with a child or any other person. The court was not persuaded:

The presence of this language in the handbook does not support a finding that the national church was negligent in hiring and supervising [the missionary]. Even if he did not follow the instruction to never be separated and committed an act of sexual abuse while serving as a missionary in violation of the handbook's prohibition of the same, it is not enough to establish negligence on the part of the national church without anything more. Plaintiff has failed to provide any evidence that anyone associated with the church … had reason to believe that he was unfit to serve as a missionary or posed a danger to [the victim] or anyone else. It is ludicrous to suggest that, because the church chose to caution its missionaries against sex outside of marriage and to avoid criminal misconduct or the appearance of impropriety, that it had knowledge that [this missionary] might conceivably engage in sexual abuse and should be liable for such actions.

Application. The court reached the important conclusions that a church cannot be liable for negligent selection of a person who molests a child if it exercised reasonable care in the selection of that person, and cannot be liable on the basis of negligent supervision if the molestation was not reasonably foreseeable based on one or more previous similar incidents. It is worth noting that the court characterized as "ludicrous" the mother's argument that the church was guilty of negligent supervision because of provisions in its missionary manual calling for missionaries never to be alone with a child and to avoid any form of sexual misconduct. Olinger v. Corporation of the President, 521 F.Supp.2d 577 (E.D. Ky. 2007).

This Recent Development first appeared in Church Law & Tax Report, September/October 2008.

Legal Developments

Woman Barred from Suing After Five-Year Sexual Relationship

A New York state law prevented the woman from suing the synagogue leader.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Woman Barred from Suing After Five-Year Sexual Relationship

A New York state law prevented the woman from suing the synagogue leader.

Richard R. Hammar, J.D., LL.M., CPA

Key Point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

Key Point 4-11.02. Clergy who are sued for sexual misconduct may be able to assert one or more defenses.

A New York court ruled that a state law abolishing any remedy for alienation of affections and seduction barred a woman from suing a spiritual leader and counselor for damages she allegedly suffered as a result of a five-year sexual relationship. The founder and spiritual leader of a Jewish synagogue (the “defendant”) held himself out as a counselor and advisor with an expertise in women’s issues. A woman (the “plaintiff”) began attending services at the synagogue. The defendant advised her with respect to her personal, legal and financial problems, and represented that he would assist her in finding a husband so she would be able to marry and have children as she wished. The two eventually began a sexual relationship that lasted for five years.

The plaintiff alleged that she was induced by defendant to engage in this physical relationship “as part of a course of sexual therapy which he represented would lead to her achieving her goals of marriage and children.” He told her she was “closed to the possibility of finding a husband” and “would never find a husband in her current state.” He advised her “to permit him to have sexual intercourse with her so that her ‘life will open up and men will come’ to her.” He told her he “was as close to God as anyone could get,” and engaging in sexual relations with him would be her “only hope.” The relationship did not lead to the outcome the plaintiff desired. Rather, she claimed, the defendant “physically and emotionally abused [her] for his own sexual pleasure and gratification,” and warned that if she told anyone about their sexual relationship he “would have her placed in a straight jacket,” “have her put in the penitentiary,” and “would turn the community against her.”

The plaintiff sued the defendant for breach of fiduciary duty. Specifically, the plaintiff claimed that since the defendant held himself out as a counselor with an expertise in women’s issues, he “owed a fiduciary duty to [her] and a duty not to abuse their relationship of trust and confidence.” She also sued the defendant for emotional distress and her synagogue for negligent retention of the defendant. The court rejected the breach of fiduciary duty claim for two reasons.

First, a state law abolished all claims for alienation of affections and seduction and defined seduction as “any conduct on the part of a man, without the use of force, in wrongfully inducing a woman to surrender to his sexual desires.” The plaintiff’s claims “fall squarely within [this statute] whether couched as a claim for breach of fiduciary duty or intentional infliction of emotional distress.”

Second, the court noted that “the allegations that the defendant held himself out as a counselor and advisor with an expertise in women’s issues are merely general allegations; the mere giving of advice that is in turn accepted is not sufficient to create a fiduciary relationship …. While plaintiff asserts that defendant occupied a position as fiduciary as [her] counselor, advisor and therapist, there is no claim that he held himself out to be a professional counselor, that the parties had a professional relationship, that he was trained to be a therapist in any particular specialty or even that he was counseling her in a specific area. On the contrary, she claims that he counseled her with respect to her personal, legal and financial problems. That plaintiff may have succumbed to defendant’s persuasive power and may have been exploited by him for his own sexual gratification is insufficient to impose a legal duty on him, entitling plaintiff to the recovery of damages. She must allege more than her subjective belief in defendant’s rectitude and honesty.”

The court also dismissed the plaintiff’s claim of emotional distress on the ground that it was barred by the state law abolishing any recovery for alienation of affections or seduction. Marmelstein v. Kehillat New Hempstead, 841 N.Y.S.2d 493 (N.Y.A.D. 2007).

This Recent Development first appeared in Church Law & Tax Report, July/August 2008.

Legal Developments

Conducting Background Checks

An employer’s failure to conduct criminal records checks on its employees might be viewed by a jury as evidence of negligent hiring.

Richard R. Hammar, Attorney, CPA

Bio

State: Georgia
Categories: Employment Practices, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Conducting Background Checks

An employer’s failure to conduct criminal records checks on its employees might be viewed by a jury as evidence of negligent hiring.

Richard R. Hammar, J.D., LL.M., CPA

Key point 10-06. A church may be legally responsible on the basis of negligent selection for injuries resulting from the acts of a minister or other worker not involving sexual misconduct.

* A Georgia appeals court ruled that a trial court improperly dismissed a lawsuit brought against a home security company by a woman who had been kidnapped by one of the company’s employees and who had claimed that the company was responsible for its employee’s acts on the basis of negligent hiring since it failed to conduct a criminal records check on the employee when he was hired. A home security company (the “employer”) hired a salesman (the “employee”) to sell home security systems door-to-door. The employer did not perform a background check before hiring the employee, which would have revealed that he had been convicted of burglary and kidnapping in 1979, sentenced to life in prison, and paroled in 1995. In the past, the employer required background checks on all salespersons who entered prospective buyers’ homes. However, this practice was discontinued due to the “tremendous turnover” in those positions.

A woman (the “plaintiff”) went home from work in the early afternoon to pick up medicine for her daughter. As usual, she parked in her garage and entered the house through an unlocked door, leaving the garage door up. While she was straightening up her bedroom, she noticed the employee standing in the doorway. She asked if she could help him. He responded by pulling out a gun and pointing it at her. He then bound her with duct tape, placed her in her own car, and took her to another state. He eventually released the woman when she promised to pay him $6,000.

The plaintiff sued the employer, claiming that it was responsible for its employee’s wrongful acts on the basis of negligent hiring. A trial court granted the employer’s motion for summary judgment, meaning that it concluded that reasonable minds would all agree that the employer had not been negligent and therefore there was no need to waste the court’s time with a trial. The plaintiff appealed.

A state appeals court noted that “the appropriate standard of care in a negligent hiring/retention action is whether the employer knew or should have known the employee was not suited for the particular employment. Stated differently, an employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee’s tendencies or propensities that the employee could cause the type of harm sustained by the plaintiff. Moreover, whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case.”

The court concluded that “we cannot say that the evidence adduced was sufficient to demand a finding as a matter of law that the defendant had exercised due care in screening the employee in question.”

Application. No court, in a published decision, has found a church liable for the sexual misconduct of a volunteer worker or employee as a result of a failure to conduct a criminal records check. But, cases addressing the liability of secular employers for failing to conduct criminal records checks are relevant in assessing how churches will be treated by the courts. The court in this case concluded that there was a sufficient connection between the employer’s failure to conduct a criminal records check on its employee and his kidnapping of the plaintiff to reverse the trial court’s summary judgment in favor of the employer. Note, however, that the reversal of a summary judgment only requires only the slightest evidence. The court was persuaded that the plaintiff had presented “some evidence, however slight, that the employer’s failure to perform a background check on its employee was a proximate contributing cause of her kidnapping.”

Also, note that a failure to conduct a criminal records check will be relevant in assessing an employer’s liability only if such a check would have disclosed a criminal record demonstrating a propensity to commit the type of crime in question. To illustrate, the court referred to a prior case in which a court ruled that summary judgment was appropriate since a background investigation performed on a security guard who was involved in murder of the plaintiff’s son showed that the guard had no record of criminal activity. Kelley v. Baker Protective Services, 401 S.E.2d 585 (Ga. 1991).

In summary, this court concluded that an employer’s failure to conduct criminal records checks on its employees might be viewed by a jury as evidence of negligent hiring. Underberg v. Southern Alarm, Inc., 643 S.E.2d 374 (Ga. App. 2007).

Legal Developments

Negligent Hiring Liabilities

A federal court in Kansas ruled that a victim of child abuse made a viable claim against a charity that hired the molester as a youth worker despite knowledge of a history of sexual misconduct.

Richard R. Hammar, Attorney, CPA

Bio

State: Kansas
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Negligent Hiring Liabilities

A federal court in Kansas ruled that a victim of child abuse made a viable claim against a charity that hired the molester as a youth worker despite knowledge of a history of sexual misconduct.

Richard R. Hammar, J.D., LL.M., CPA

Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

* A federal court in Kansas ruled that a victim of child abuse made a viable claim against a charity that hired the molester as a youth worker despite knowledge of a history of sexual misconduct. An adult male (“Don”) worked as a volunteer wrestling coach for an amateur wrestling club (the “charity”). He met a 13-year-old male (the “victim”) who participated in the charity’s wrestling program. During the next two years, Don molested the victim in a variety of locations, including his own home.

Don had a history of sexual misconduct. He was prosecuted several years before for sexual misconduct with young males in another state. The prosecution is a matter of public record. The victim sued the charity, claiming that it was responsible for Don’s wrongful acts on the basis of several theories, including negligent selection. Specifically, the victim argued that the charity knew about Don’s history of sexual misconduct with young males and that he was likely to commit future harm to children, and that it “ratified, abetted and enabled” him to abuse the victim by permitting him to act as a volunteer coach. In addition, the victim argued that the charity was liable for failing to report Don to the proper authorities upon receiving information that he was engaging in sexual misconduct with minors. The charity asked the court to dismiss all of the victim’s claims.

The court noted that a motion to dismiss is appropriate only when “it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claims which would entitle it to relief.” The court ruled that a dismissal of the victim’s claims was inappropriate since he had produced sufficient evidence in support of those claims. It noted that liability based on “aiding and abetting others” requires proof of the following: (1) the person whom the defendant aids must perform a wrongful act causing injury; (2) at the time the defendant provides assistance, he or she must be generally aware of his or her role in part of a wrongful or illegal activity; and (3) the defendant must knowingly and substantially assist in the violation.

The court concluded that the victim had produced sufficient proof of “aiding and abetting” to survive a motion to dismiss. He “certainly alleges that Don performed a wrongful act causing injury. Additionally, he alleges that the charity knew about Don’s past sexual misconduct with minors in athletic programs, knew that he was likely to commit future harm to children … and it nevertheless permitted him … to act as a volunteer coach. The victim further alleges that it failed to report Don to the proper authorities upon receiving information that he was engaging in sexual misconduct with students. These allegations generally indicate that the charity was aware of its role in Don’s misconduct during the time period when he was serving as a volunteer in their programs and that it knowingly and substantially assisted in his misconduct by allowing him to continue as a volunteer in their programs and not reporting him to the proper authorities. These allegations are sufficient to state a claim under an aiding and abetting theory.”

The court also ruled that there was sufficient evidence that the charity “ratified” Don’s behavior to let this claim proceed to trial. It observed: “Upon acquiring full knowledge of all the material circumstances of an agent’s unauthorized act, the principal must promptly repudiate the act or it will be presumed that the principal has ratified and affirmed the act.” According to the victim, the charity “knew about Don’s propensities and nevertheless allowed him to serve as a volunteer … and then failed to report him to the authorities once it learned about his misconduct.”

Application. This case is important for the following reasons. First, the court ruled that a charity can be liable for a volunteer’s acts of sexual misconduct on the basis of “aiding and abetting” and “ratification.” Few courts have recognized these grounds for liability in sexual misconduct cases in the past. Second, the court concluded that the charity was aware of Don’s propensity to molest children, in part because he had been prosecuted for child molestation several years before in another state and this proceeding was a matter of public record. This conclusion suggests that churches and other charities that conduct criminal records checks on youth workers should do so on a national basis, since they may be responsible for knowing criminal prosecutions and convictions that are matters of public record in other states. C.T. v. Liberal School District, 2007 WL 1579472 (D. Kan. 2007).

Legal Developments

Whistleblower Act and Employer Retaliation

A Florida appeals court ruled that it was barred by the First Amendment from resolving a woman’s claim under a state “whistle-blower” law.

Richard R. Hammar, Attorney, CPA

Bio

State: Florida
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Whistleblower Act and Employer Retaliation

A Florida appeals court ruled that it was barred by the First Amendment from resolving a woman’s claim under a state “whistle-blower” law.

Richard R. Hammar, J.D., LL.M., CPA

Key point 8-06. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

* A Florida appeals court ruled that it was barred by the First Amendment from resolving a woman’s claim under a state “whistle-blower” law that she had been wrongfully terminated in retaliation for charging her supervisor with assaulting her. A female principal of a church-operated private school was assaulted by a priest who also served as her supervisor. When she complained to diocesan officials, she claimed that the officials retaliated against her by terminating her employment. She sued the diocese for violating the state’s Private Sector Whistle-blower Act which prohibits employers from taking retaliatory action against employees who object to or refuse to participate in activities, policies or practices of their employer that are “in violation of a law, rule, or regulation.” Florida Statutes § 448.102(3).

The court began its opinion by referring to a United States Supreme Court ruling that interpreted the First Amendment religion clauses as placing matters of church government and administration beyond the purview of civil authorities: “Whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871).

The Florida court noted that this interpretation, known as the “ecclesiastical abstention doctrine,” prevents the civil courts from resolving employment disputes “between a religious organization and its clergy because such matters necessarily involve questions of internal church discipline, faith, and organization that are governed by ecclesiastical rule, custom, and law.” As a result, when a lawsuit challenges a church’s employment decision, “the inquiry is whether the employee is a member of the clergy or serves a ministerial function. If so, secular review is generally precluded.”

In this case, the parties conceded that the school principal was a “ministerial” employee, and the court “saw no reason why the ministerial exception should not be applied to a whistleblower claim.” Archdiocese of Miami, Inc. v. Minagorri, 2007 WL 756106 (Fla. App. 2007).

Legal Developments

Liability for Ex-Employees

Churches generally cannot be liable for the acts of employees that are committed in their own residences apart from an official church activity, or after the termination of their employment.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Employment Practices, Schools, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Liability for Ex-Employees

Churches generally cannot be liable for the acts of employees that are committed in their own residences apart from an official church activity, or after the termination of their employment.

Richard R. Hammar, J.D., LL.M., CPA

Key point. Churches generally cannot be liable for the acts of employees that are committed in their own residences apart from an official church activity, or after the termination of their employment.

* A New York court ruled that a church was not liable for the molestation of a young girl by a church’s youth pastor that occurred after his employment was terminated, and in his own home. A minor female was sexually molested by a youth pastor. She sued her church, claiming that it was responsible on the basis of negligent hiring, negligent retention, and negligent supervision for the youth pastor’s wrongful acts. A trial court dismissed the lawsuit, and a state appeals court affirmed this ruling. It concluded that the church could not be liable for the youth pastor’s acts since he was no longer employed by the church at the time he abused the victim. Further, the court pointed out that the abuse occurred in the youth pastor’s apartment, and so “there was no connection between his employment and the abuse of the plaintiff, as it was severed by time, place, and the intervening independent acts of the youth pastor.”

Application. This case is important for two reasons. First, it illustrates the general rule that a church is not liable for the acts of employees committed after the termination of their employment. Second, it demonstrates that a church generally is not liable for the acts of an employee committed in his or her own home, and unconnected to any official church activity. Farrell v. Maiello, 831 N.Y.S.2d 506 (N.Y.A.D. 2007).

* See also the feature article “Church Liability for the Sexual Molestation of Minors” in this newsletter.

Legal Developments

The “Bar Association” Analogy

A Minnesota court recognizes an important principle.

Richard R. Hammar, Attorney, CPA

Bio

State: Minnesota
Categories: Child Abuse, Denominations - Legal Liability, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

A Minnesota court recognizes an important principle, C.B. ex rel. L.B. v. Evangelical Lutheran Church in America, 726 N.W.2d 127 (Minn. App. 2007)

• Article summary. In a case of enormous importance to denominational agencies, a Minnesota appeals court applied the "bar association analogy" in concluding that a regional and national church were not liable for the sexual misconduct of a pastor since the relationship between the church entities and credentialed clergy (which resembled the relationship between state bar associations and licensed attorneys) was too attenuated to justify the imposition of liability on the church entities for clergy misconduct. This case is the second court to recognize this important analogy. The court's ruling also addressed a number of other significant issues. This article will summarize the facts of the case, review the court's opinion, and assess its significant.

• Key point 10-02.1. Employers may be liable on the basis of respondeat superior only for the acts of employees.

• Key point 10-02.3. Churches can be legally responsible on the basis of the respondeat superior doctrine for the actions of their employees only if those actions are committed within the course of employment and further the mission and functions of the church. Intentional and self-serving acts of church employees often will not satisfy this standard.

• Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker's acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.

• Key point 10-18.3. There are several legal defenses available to a denominational agency that is sued as a result of the acts or obligations of affiliated clergy and churches. These include a lack of temporal control over clergy and churches; a lack of official notice of a minister's prior wrongdoing in accordance with the denomination's governing documents; lack of an agency relationship; the prohibition by the First Amendment of any attempt by the civil courts to impose liability on religious organizations in a way that would threaten or alter their polity; and elimination or modification of the principle of joint and several liability.

A Minnesota appeals court ruled that a local church, as well as regional and national denominational agencies, were not liable for the sexual molestation of a young girl by a retired pastor. The court's ruling addressed several key issues, all of which are summarized in this feature article.

Facts

A pastor (Pastor Owen) and his wife returned to their farm following his retirement. Shortly after returning to his home community, Pastor Owen occasionally conducted worship services in his former church for a fixed fee when the current pastor was unavailable. He also resumed a close friendship with a former parishioner and her husband and two young children. The two families often spent Christmas and birthdays together, and Pastor Owen and his wife regularly babysat the two children. The children frequently visited the farm to play with the animals. Eventually, the children began referring to Pastor Owen and his wife as "grandpa" and "grandma."

Eventually, one of the two children, a young girl (the "victim"), started spending the night at the farm. At about the same time, the victim was having difficulty with her school work. Because Pastor Owen's wife was a retired teacher, she began helping the child improve her grades.

One morning, after having spent the previous evening at the farm, the victim told her mother that she had been sexually abused by Pastor Owen. The parents sought the advice of their current pastor, who they claim instructed them to "stay silent." The police were not informed of the abuse until several months later when an unnamed person made a report. Pastor Owen was charged with child abuse, and pleaded guilty to second-degree criminal sexual conduct. Both Pastor Owen, and the pastor who advised the family to "stay silent," were asked to resign their ministerial credentials by their denomination (the "regional church").

The victim, through her parents, sued Pastor Owen. She also sued the local church and regional and national denominational offices (the "church defendants"). The victim claimed that the church defendants were responsible for Pastor Owen's misconduct on the basis of respondeat superior, negligent supervision, and ratification. Under the legal doctrine of respondeat superior, an employer generally is responsible for the negligent acts of its employees committed within the course of their employment. A trial court dismissed the victim's claims against the church defendants, but allowed her claims against Pastor Owen to proceed. The victim appealed the dismissal of her claims against the church defendants.

The Court's Ruling

Summarized below are the court's responses to each of the victim's three theories of liability—respondeat superior, negligent supervision, and ratification.

(1) Respondeat superior

The appeals court noted that under the respondeat superior doctrine, "an employer is vicariously liable for the acts of an employee committed within the course and scope of employment." The victim argued that an employment relationship existed between Pastor Owen and the church defendants because he was an ordained minister in good standing and his name was on the "clergy roster." Further, she claimed that the regional and national churches exercised enough control over a pastor's ministry to give rise to an employment relationship. In particular, she noted that the regional and national churches (1) determine who is qualified to be a minister; (2) demand that ministers agree and abide by their constitutions and bylaws; and (3) retain the authority to discipline ministers, including the authority to remove them from their pastoral ministry. Such evidence, the victim concluded, was sufficient evidence of control by the regional and national churches to establish an employment relationship between them and all ordained clergy.

The court acknowledged that there was evidence tending to support the existence of an employment relationship between the regional and national churches and ordained clergy:

Both the [regional and national churches] have constitutions under which a minister must abide. There is evidence in the record that both the [regional and national churches] can be involved in the disciplinary process. For example, testimony by church officials indicated that if the [regional and national churches] became aware of inappropriate behavior by a minister, the church entities could request that the minister resign. If the pastor declined to resign, the [regional and national churches] could use the process of discipline outlined in the constitutions to force his or her resignation.

Nevertheless, the court concluded that the fact that the regional and national churches "set certain standards for ministers, and can be involved in disciplinary proceedings, does not automatically mean a true employment relationship exists" that would support the imposition of liability on the church entities for the misconduct of ministers.

The court drew an analogy to the relationship between attorneys and the state supreme court. In Minnesota, the supreme court "through the Rules of Professional Conduct, sets forth the rules and standards by which lawyers must adhere. If these rules are violated, the court may discipline the responsible attorney. But this relationship between the supreme court and the disciplined attorney is not an employment relationship. There has to be something more." Similarly, the regional and national churches in this case had "limited control over the pastor." But, "the congregation, not the umbrella entity, has the responsibility for hiring and firing the pastor, setting forth the terms and conditions of employment, supplying the pastor with parsonage, vacation and supplies, and paying the pastor. [It] is the congregation, not the [regional or national churches], which employs the minister."

The court further concluded that Pastor Owen was not an employee of the local church where he occasionally filled in: "When the church needed a fill-in pastor because the full-time pastor was unavailable, the church would contact a retired pastor, such as Pastor Owen, and request that he fill in. When Pastor Owen filled in as a retired pastor, he was paid approximately $60-80 for each day that he provided his service. The church did not withhold taxes from his paycheck and he was not provided with vacation or health benefits. The record shows that he occasionally served as a fill-in pastor at other churches …. As a retired minister, he was more of an independent contractor than an employee of the church."

The court concluded that the church defendants were not liable on the basis of respondeat superior for Pastor Owen's acts of molestation because an employment relationship did not exist. In addition, his wrongful acts were not committed in the course of his employment, as required by the respondeat superior doctrine. Rather, the occurred at Pastor Owen's farm where the victim was visiting to obtain tutoring assistance from Pastor Owen's wife. The victim never alleged that she went to visit Pastor Owen "for any type of religious counseling or any other reason connected to his status as a retired minister." In fact, she testified that she never attended any religious service conducted by Pastor Owen, and knew him only as a family friend.

(2) Negligent supervision

The court noted that for the victim to prevail on her negligent supervision claim, she had to prove that Pastor Owen's conduct was foreseeable, and that the church defendants failed to exercise reasonable care in supervising him. The court defined foreseeability as "a level of probability that would lead a prudent person to take effective precautions." If Pastor Owen's abusive behavior was objectively foreseeable, then the inquiry must focus on whether the employer took reasonable precautions to prevent the abuse.

The victim claimed that Pastor Owen's abuse was foreseeable because of the following "red flags": (1) the victim's frequent overnight visits with Pastor Owens and his wife; (2) the lavishing of inappropriate and expensive gifts on the victim by both Pastor Owens and his wife; and (3) on at least one occasion, the victim had to be dragged, kicking and screaming, by her parents to Pastor Owen's car to spend time with him and his wife.

The court concluded that the victim failed to establish that the church defendants were responsible for Pastor Owen's acts on the basis of negligent supervision, because (1) Pastor Owen was not an employee of any of the church defendants, and (2) his abusive acts were not foreseeable. The court observed:

[The victim has] failed to provide any evidence that any of the church entities were aware of the alleged "red flags." Even if they were aware of the alleged "red flags," [the victim] fails to establish how these "red flags" should have put [the church defendants] on notice of the abuse. In light of [victim's] relationship with [Pastor Owen and his wife] it would not be abnormal for her to spend the night at [their home] or for [them] to buy nice gifts for somebody they considered to be their granddaughter. It is not abnormal for a teenager to put up a fuss when instructed that she spend time with a tutor to work on her school work. There is nothing in these "red flags" to indicate that Pastor Owen was abusing the vicitm, or that [the church defendants] were aware of the existence of these "red flags."

Ratification

The victim asserted that the church defendants were responsible for her injuries as a result of their "ratification" of Pastor Owen's behavior. Specifically, she claimed that by not taking immediate disciplinary action against him when they learned of the abuse, the church defendants ratified his behavior. The court acknowledged that an employer can be liable for the wrongful acts of an employee "by approving and ratifying such conduct, irrespective of whether that conduct is intentional or negligent." However, the court concluded, "ratification is inapplicable here because ratification has only been found in the context of an employer-employee relationship."

Relevance to other churches and ministers

What is the relevance of this case to church leaders? Consider the following points:

1. In general. A decision by a Minnesota appeals court is not binding in any other state, and may be reversed by the state supreme court. However, there are some aspects to the court's decision that are instructive for all churches.

2. The significance of employee status. The court concluded that the victim's lawsuit had to be dismissed because Pastor Owen was not an employee of any of the church defendants. Without an employment relationship, the court observed, there could be no liability based on respondeat superior, negligent supervision, or ratification. The court acknowledged that each of the church defendants had some ties with Pastor Owen, but nothing close to the level of control required for an employer-employee relationship.

• Key point. The court's decision would have been quite different had Pastor Owen been an employee of the local church rather than a "fill-in" pastor. The church may well have been found liable on the grounds of respondeat superior or ratification. The court's conclusion that Pastor Owen's abusive conduct was not foreseeable would have precluded liability based on negligent supervision.

3. Negligent supervision. The court noted that an employer's liability based on negligent supervision requires not only an employer-employee relationship, but also an injury that was reasonably foreseeable. The court concluded that the following "red flags" did not render Pastor Owen's abusive acts foreseeable: (1) the victim's frequent overnight visits with Pastor Owen and his wife; (2) the lavishing of inappropriate and expensive gifts on the victim by both Pastor Owen and his wife; and (3) on at least one occasion the victim had to be dragged, kicking and screaming, by her parents to Pastor Owen's car to spend time with him and his wife. However, the court stressed that it was the long-standing, close relationship between Pastor Owen and the victim's family that prevented these "red flags" from making Pastor Owen's abusive acts foreseeable.

• Key point. Without Pastor Owen's long and close relationship with the victim's family, the "red flags" cited by the victim may well have been sufficiently suspicious to make his abusive acts reasonably foreseeable. Many cases of child molestation have occurred while minors are spending the night in a staff member's home. Many of these cases have been addressed in previous issues of this newsletter. Church leaders should view this as a high risk practice that should be prohibited except in the most limited circumstances (i.e., the staff member is a close relative of the minor).

4. The "bar association analogy." Perhaps the most significant aspect of the court's decision was its use of the "bar association analogy." In recent years several plaintiffs have attempted to hold denominational agencies liable for the acts of ministers that they ordain or license. The argument is that the act of ordaining or licensing to a minister, and the retention of authority to discipline or dismiss a minister for misconduct, constitutes sufficient "control" to make the denomination liable for the minister's actions.

It is true that many denominational agencies ordain or license ministers; require ministerial credentials to be renewed annually; and reserve the authority to discipline or dismiss ministers whose conduct violates specified standards. In some cases, ministers are required or expected to provide annual contributions to the denomination. However, in most cases, the denomination retains no authority to supervise or control the day-to-day activities of ministers. It may be authorized to discipline or dismiss a minister following an investigation, but ordinarily it has no authority to independently monitor or supervise the day-to-day conduct of ministers, and no such authority is ever exercised.

The authority of many denominations to license and ordain clergy, require annual renewals of ministerial credentials, and discipline or dismiss clergy found guilty of specified misconduct, is precisely the same authority that is exercised by state professional accrediting organizations, such as bar associations. Like denominational agencies, the bar association (or, in some states, the state supreme court) has the authority to license attorneys, require annual renewals, and discipline or dismiss attorneys for violations of professional standards. In addition, many require annual contributions. However, this limited authority does not give the bar association any right to control or supervise the day-to-day activities of attorneys, and it is for this reason that no bar association has ever been sued on account of a licensed attorney's malpractice, much less been found liable, and religious organizations should be treated no differently.

An identical analogy can be made to any professional licensing organization (e.g., physicians, CPAs, veterinarians, dentists, nurses, morticians), since they all exercise about the same degree of control—they issue licenses and retain the right to discipline or dismiss licensees for violations of a professional code of conduct, but they have no authority to supervise licensees' day-to-day activities.

The civil courts are beginning to recognize the bar association analogy. The first court to do so was a federal appeals court in the case of Alford v. Commissioner, 116 F.3d 334 (8th Cir. 1997). The court, in addressing the question of whether Pastor Alford, an Assemblies of God minister, was an employee of the national church ("General Council") and one of its regional agencies ("District Council"), made the following observation:

The General Council's and District Council's right to control Alford during the relevant years extended primarily to their function in awarding credentials to ministers like himself. Generally, the church has established certain criteria that must be met for an individual such as Alford to obtain credentials initially and to renew that status annually. There are standards for the education a minister must acquire (which he must obtain and pay for himself) and for his performance on certain tests. Other requirements include subscribing to the doctrinal statement of the Assemblies of God, which sets forth the religious beliefs of the church, its ministers, and its members, and to the form of church government. Ordained ministers must preach thirteen times a year, but topics are not decreed by the regional or national organizations. Ministers holding credentials cannot preach in churches other than Assemblies of God churches without permission of the District Council. Ministers may be disciplined for what the church considers failure to follow church doctrine and for lapses in personal conduct, and may, in fact, have their credentials revoked. With some exceptions not relevant here, a minister must tithe to both the regional and national organizations. Attendance at certain meetings is expected, but not required. Thus it is apparent that, while the regional and national churches had doctrinal authority to exercise considerable control over Alford as regards his beliefs and his personal conduct as a minister of the church, they did not have "the right to control the manner and means by which the product [was] accomplished."

The [trial court] and the United States make much of the fact that Alford, as a minister holding credentials, was "amenable" to the General Council and to the District Council in matters of doctrine and conduct. But this is not unusual in such a profession, and actually is merely a shorthand way of describing the parent church's doctrinal and disciplinary control discussed above. The control exercised by the regional and national organizations, and their right to control Alford, was no more nor less than most professions require of individuals licensed or otherwise authorized to work in the profession. State bar associations, for example, have certain education requirements and demand a certain level of performance on a bar examination before an individual can be licensed to practice law. On an annual basis, such associations require the payment of dues and often the completion of continuing legal education in order for an attorney to retain his license. State bar associations are empowered to monitor attorneys' behavior and to discipline them as they see fit, including the revocation of an attorney's license to practice law (disbarment). Yet no one would suggest that, by virtue of this right to control an attorney's working life, the bar association is his employer, or even one of his employers.

Obviously, the importance of this case cannot be overstated. It will effectively refute, in many cases, attempts by plaintiffs to hold denominational agencies accountable for the acts of their ordained and licensed ministers.

The second reference to the bar association analogy was the Minnesota appeals court decision addressed in this article. The court compared a religious denomination's ordination and discipline of ministers to similar functions performed by the state supreme court. In Minnesota, the state supreme court licenses attorneys and retains the authority to discipline those who violate a code of professional ethics. The appeals court concluded that this relationship was too attenuated to establish an employment relationship, and as a result the regional and national churches could not be liable for Pastor Owen's abusive acts.

• Key point. Any regional or national church that issues ministerial credentials, and that disciplines ministers who violate a code of conduct, can use the bar association analogy. It is a powerful and compelling argument. The bottom line is this—no bar association has ever been sued, much less found liable, for the malpractice of an attorney; why should religious organizations be treated differently?

• Example. The Alabama Supreme Court compared an attempt to impute legal liability to a denomination as a result of the misconduct of a minister "to situations where a young man may be in a seminary and the seminary is asked to supply a preacher or a minister for a congregation. The fact that the young minister may have some alma mater does not make the seminary responsible for his behavior in the event he elects to commit a burglary or some other act which he might consider to be ordained by divine aegis or providence. It would not in and of itself make the seminary responsible for his behavior." Wood v. Benedictine Society of Alabama, Inc., 530 So.2d 801 (Ala. 1988).

© Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800)222-1840. © 2007 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Clergy and Sexual Assault

Ministers who engage in sexual contact with church employees or church members expose their church to potentially substantial liability.

Richard R. Hammar, Attorney, CPA

Bio

State: Arkansas
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Clergy and Sexual Assault

Ministers who engage in sexual contact with church employees or church members expose their church to potentially substantial liability.

Richard R. Hammar, J.D., LL.M., CPA

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

* The Arkansas Supreme Court upheld a 40-year prison sentence for a pastor who engaged in sexual relations with a church secretary and a church member. A church secretary alleged that the church’s senior pastor called her into his office at the church during lunch and sexually assaulted her. A second incident occurred a few months later when the pastor took her to a motel where he again assaulted her. The secretary testified that she was afraid to resist on both occasions. She testified that she saw the pastor as a “father figure” and looked up to him as a preacher. A second woman also claimed that the pastor engaged in sexual contact with her. The pastor was arrested and charged with sexual assault in the third degree. The third-degree sexual assault statute states: “A person commits sexual assault in the third degree if the person … engages in sexual intercourse or deviate sexual activity with another person who is not the actor’s spouse, and the actor is … a member of the clergy and is in a position of trust or authority over the victim and uses the position of trust or authority to engage in sexual intercourse or deviate sexual activity.” A jury convicted the pastor and sentenced him to a prison sentence of forty years. The pastor appealed on several grounds, including those summarized below.

(1) Sufficiency of the evidence

The pastor claimed that there was insufficient evidence to sustain his conviction for third-degree sexual assault. He argued that the state’s evidence proved nothing more than a consensual sexual relationship with both women, and that there was no evidence that he was in a position of trust or authority over either woman or that he used that position to engage in a sexual relationship with either. The court disagreed. It concluded:

Our review of whether a crime was committed does not end with the fact that the pastor had sex with the two victims. Both victims testified that they looked up to him as a preacher and trusted him. [The church secretary] testified that she was afraid of what might happen to her if she did not comply with his sexual requests. She further testified that she was not attracted to him. [The other woman] stated that she told the pastor, regarding sex, “No, you’re a preacher. It’s not proper. It’s not right.” This testimony does not indicate a consensual relationship. It indicates that the [pastor] used his position of trust and authority over these two victims to engage in unwanted sexual activity with them. The evidence was sufficient to sustain his conviction for third-degree sexual assault.

(2) Constitutional issues

The pastor claimed that the Constitution guarantees the right to engage in private, consensual sex. The court agreed, but concluded that the pastor had no right “to engage in sexual activity by abusing his position of trust and authority.”

The pastor also claimed that the third-degree sexual assault statute violated his rights under the Equal Protection Clause of the United States Constitution since it singled out ministers and prohibited them from engaging in consensual sex with other adults. The court disagreed: “Once again, [the pastor] misconstrues the statute as one that prohibits purely consensual conduct. As previously discussed, he was not prosecuted for purely consensual acts but rather for using his position of trust and authority to engage in sexual activity.” In addition, the court noted that several other professions are mentioned in the third-degree sexual assault statute, including child-care workers, dentists, judges, law enforcement officials, medical personnel, teachers, and prosecuting attorneys.

The court concluded: “Members of the clergy are highly respected and trusted by most people. People specifically seek out their ministers and clergyman when they are especially vulnerable and in time of need. Because the clergy is held in such a high regard, there is a legitimate reason for the state to criminalize a clergyman’s abuse of this trust and authority to procure sex.”

Application. Ministers who engage in sexual contact with church employees or church members expose their church to potentially substantial liability. Many of these cases have been reported in this newsletter. But, such behavior has other consequences. One of them is criminal liability for the minister. Several states have enacted laws that make sexual misconduct by clergy a crime punishable by imprisonment. Talbert v. State, 2006 WL 2699903 (Ark. 2006).

Resource. A feature article in the July-August 2006 edition of Church Law & Tax Report (“Criminal Liability of Clergy for Sexual Misconduct Involving Adults”) addresses the criminal liability of clergy for engaging in sexual misconduct.

* See also the feature article “The Bar Association Analogy,” in this newsletter.

Legal Developments

Selecting Ministers and Negligent Retention

A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Selecting Ministers and Negligent Retention

A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct.

Richard R. Hammar, J.D., LL.M., CPA

Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.

* A federal appeals court affirmed a sentence of 18 years imprisonment without the possibility of parole on an active church member who pleaded guilty to possession and distribution of child pornography. An adult male (Keith) was arrested for using the internet to collect and trade child pornography. He used his computer to download over 15,000 images from a network that trafficked in child pornography, and he allowed others in the network to obtain images from his computer. At sentencing a federal district court considered evidence about Keith’s personal history and characteristics. He submitted letters from friends and family describing his traumatic childhood and his parents’ divorce. Some letters described his regular church attendance and membership in his church’s youth group when he was a child.

Keith requested a 5-year sentence (the statutory minimum) so that he could have access to a treatment program as soon as possible. The court noted its concern about Keith’s recent employment at a carnival, which demonstrated his propensity to work near children, and it concluded that he posed a possible danger to the public “if he were to take the next step of actually acting on his fantasies.” The court noted Keith’s difficult family situation, but concluded that his situation did not excuse his actions. The court recounted several aggravating factors, such as the seriousness of the offense, the need to promote respect for the law and deter future criminal conduct, the need to “provide just punishment for the offense,” and Keith’s history and characteristics.

The district court imposed a sentence of 18 years imprisonment without the possibility of parole. The trial judge noted that he reviewed “all of the letters” and believed that Keith was a “Jekyll and Hyde” with his “family and church and friends.” On appeal, Keith argued that the district court did not adequately consider his personal characteristics and his need for access to psychiatric counseling. A federal appeals court disagreed, and upheld the sentence.

Application. This case illustrates two important points. First, possession and distribution of child pornography is a serious offense. Despite the fact that Keith pleaded guilty, he was sentenced to 18 years in federal prison without the possibility of parole. Church leaders sometimes discover that a staff member, or congregational member, has accessed child pornography. This must not be viewed as a minor infraction that can be safely ignored. Remember that many persons who access child pornography are pedophiles who pose a grave risk of harm to children, and to the church itself. To illustrate, if church leaders learn that a staff member has accessed child pornography, and fail to act decisively to protect children in the congregation from this person, then the church may be liable on the basis of “negligent retention” for his or her future acts of child molestation.

Second, note that Keith regularly attended his church, and that church members wrote several letters of support for him as he was awaiting sentencing. The district court concluded that he was a “Jekyll and Hyde” who completely deceived members of his church about his true character. This illustrates the importance of screening anyone who wants to work with minors in a church, no matter how “well known” the person may be. U.S. v. Phillipe, 212 Fed.Appx. 574 (7th Cir. 2007).

Legal Developments

Non-Ministers and Wrongful Termination Claims

A former church employee’s job and duties did not trigger the ministerial exception, and a resolution of her wrongful discharge claim did not require the court to delve into religious doctrine.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Employment Practices, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Non-Ministers and Wrongful Termination Claims

A former church employee’s job and duties did not trigger the ministerial exception, and a resolution of her wrongful discharge claim did not require the court to delve into religious doctrine.

Richard R. Hammar, J.D., LL.M., CPA

Key point 8-04. In most states, employees who are hired for an indefinite period are considered “at will” employees. This means that the employment relationship may be terminated at will by either the employer or employee, with or without cause, and with or without notice. The courts and state legislatures have created a number of exceptions to the at will employment rule. These exceptions limit the right of an employer to terminate an at will employee. Employees who are hired for a specific term are not at will employees, and they may be terminated only if the employer has “good cause.”

* A federal court in Washington ruled that the First Amendment did not prevent it from resolving a dismissed lay employee’s claim of wrongful termination against her former church. The parties in this case were the same as in the previous case. In this case, Beth sued her church and denominational agencies (the “church defendants”) for wrongful termination rather than sexual harassment discrimination under Title VII. She asserted that the church’s termination of her employment based on her accusations of sexual harassment against the senior pastor violated a “public policy against sex discrimination.”

The court noted that “there is no dispute that Beth was subjected to unwelcome and persistent sexual advances from [the senior pastor] contrary to Washington’s strong public policy against such behavior.” After she complained to the pastor about his conduct, he informed her that she would have to resign. The church’s associate pastor, also a member of the board, confirmed this decision. Beth later communicated to the other members of the church board the severity and frequency of the pastor’s misconduct. Nonetheless, the board did not question the pastors’ decision to terminate her.

The church claimed that questioning its justification for Beth’s termination would intrude upon its First Amendment right to the free exercise of its religion. The court acknowledged that the First Amendment “precludes claims that would require a jury to evaluate religious doctrine or the reasonableness of the religious practices followed [by a religious organization].” However, this principle “does not provide churches with absolute immunity to engage in [wrongful] conduct. So long as liability is predicated on secular conduct and does not involve the interpretation of church doctrine or religious beliefs, it does not offend constitutional principles.”

The court concluded that Beth’s wrongful discharge claim “turns on secular conduct because it, unlike her negligent supervision or sexual harassment claims, concerns a single decision by her employer: the only relevant decision that [the court] can reasonably attribute to [the church] is the decision by the pastors, unchallenged by the [other board members] to terminate Beth after she complained about the pastor’s harassing conduct.”

The court stressed that Beth was employed in an administrative role in which her “primary functions [did not] serve the church’s spiritual and pastoral mission,” and therefore she was not covered by the so-called ministerial exception (which generally prevents the civil courts from resolving employment disputes between churches and ministers).

The church also argued that Beth’s termination was “inextricably intertwined” with church discipline, deference to the senior pastor, and protection of the pastoral relation. The court disagreed. Although the senior pastor was disciplined and ultimately deposed, these developments were not relevant in assessing Beth’s claims. The court noted that “sexual harassment claims involving religious institutions often require analysis of a minister’s interactions, appropriate or otherwise, with members of his congregation. This necessity does not bring such cases within the ministerial exception: the 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.”

The church also claimed that it was guided in its actions towards Beth by the church’s doctrine of discipline. The court acknowledged that “the propriety of her own conduct with respect to [the senior pastor] was a subject of the board’s inquiry. But a credibility dispute between accuser and accused is no different than might face any other secular employer investigating workplace sexual harassment. The board may well have had questions about Beth’s religious or moral transgressions, but the wrongfulness of her termination from a secular administrative position after reporting sexual harassment need not rest on questions of discipline, or of faith, or ecclesiastical rule, custom, or law ….”

The court concluded that the church’s attempt to inject doctrine in this lawsuit “does not of itself transform Beth’s wrongful-discharge claim into an ecclesiastical dispute. Nor would it preclude a jury from finding that [the church] lacked an overriding justification for her discharge.”

Application. As noted in the previous case summarized in this newsletter, Beth’s sexual harassment claim under Title VII was dismissed by a federal appeals court. However, as this case demonstrates, this did not prevent her from pursuing other claims against the church. In this case, the court rejected the church’s motion to dismiss her wrongful discharge claim. It concluded that Beth’s job and duties did not trigger the ministerial exception, and a resolution of her wrongful discharge claim would not require the court to delve into religious doctrine in violation of the First Amendment. Macdonald v. Grace Church Seattle, 2006 WL 2252866 (W.D. Wash. 2006).

Legal Developments

Breach of Fiduciary Duty

Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister.

Richard R. Hammar, Attorney, CPA

Bio

State: Colorado
Categories: Denominations - Legal Liability, Fiduciary Duty, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Breach of Fiduciary Duty

Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister.

Richard R. Hammar, J.D., LL.M., CPA

Key point 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on First Amendment considerations.

* A Connecticut court ruled that a priest and archdiocese were not liable on the basis of a breach of a fiduciary duty for the priest’s sexual relationship with an adult woman since no fiduciary duty arose under the circumstances. A 40-year-old woman (the “plaintiff”) with a long history of psychiatric and emotional problems sought out the “advice, counsel and friendship” of a priest. At the time, the priest was serving as an associate priest at a local church and was also an employee of the archdiocese. The plaintiff did not engage in formal counseling with the priest; rather, their relationship involved mainly recreational activities such as home visits, lunch and dinner dates, shopping trips, walks on the beach and trips to see movies. According to the plaintiff, the priest provided her emotional, spiritual and friendly support and that her “whole relationship” with him was one of counseling. At some point during their association, the priest became aware of her emotional problems and, nevertheless, engaged in a sexual relationship with her. The plaintiff alleged that she eventually ended the sexual aspect of their relationship after which the priest terminated all involvement with her.

The plaintiff sued the priest claiming that a fiduciary duty arose by virtue of the priest-parishioner relationship, and the priest breached this duty when, despite knowledge of her emotional problems, he engaged in “a close physical and intimate relationship” with her. The plaintiff also sued the archdiocese, claiming that it breached its duty to supervise the priest. Specifically, the plaintiff alleged that the archdiocese “knew or should have known that the priest had engaged in inappropriate behavior with the plaintiff” and, as a result, the archdiocese was liable for the priest’s breach of a fiduciary duty. A trial court dismissed the claims against the priest and archdiocese, and the plaintiff appealed.

Breach of a fiduciary duty

The appeals court defined a fiduciary or confidential relationship as “a relationship that is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.” The court acknowledged that “various state and federal courts” have concluded that a clergy-parishioner relationship may constitute a fiduciary relationship, but in each of those cases “something more than a general clergy-parishioner relationship was present.” For example, “the existence of a formal pastoral counseling relationship between a clergy member and a parishioner has been deemed significant in determining whether a fiduciary relationship was created. The court summarized the following precedent:

Colorado. (1) Court found that a fiduciary relationship existed between a clergyman and plaintiff, in part, because the clergyman had served as counselor to plaintiff. Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993). (2) A fiduciary duty was created when a priest undertook to counsel plaintiffs. Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988).
Federal district court in Iowa. Court dismissed plaintiff’s breach of fiduciary duty claim because plaintiff simply alleged clergy-parishioner relationship, not counseling relationship. Doe v. Hartz, 52 F. Supp.2d 1027 (N.D. Iowa 1999).
New Jersey. The New Jersey Supreme Court concluded that a breach of fiduciary duty claim arising out of the sexual relationship between a clergyman and a parishioner who was seeking marital counseling was permissible under New Jersey law. In so doing, the court placed considerable weight on the fact that the plaintiff was engaged in a specific pastoral counseling relationship with the clergyman. According to that court, “trust and confidence are vital to the counseling relationship between parishioner and pastor. By accepting a parishioner for counseling, a pastor also accepts the responsibility of a fiduciary.” The court explained that “establishing a fiduciary duty essentially requires proof that a parishioner trusted and sought counseling from the pastor.” F.G. v. MacDonell, 696 A.2d 697 (1997).
Federal appeals court. A federal appeals court permitted a breach of fiduciary duty claim to proceed against a clergyman because the fiduciary duty allegedly arose out of a counseling relationship, not simply a clergy-parishioner relationship. Sanders v. Casa View Baptist Church, 134 F.3d 331 (5th Cir. 1998).

The court concluded that “something more” than the general clergy-parishioner relationship must be present to establish a fiduciary relationship, and it declined the plaintiff’s invitation to establish a fiduciary relationship “between all clergy and their congregants.” The court concluded that the plaintiff’s relationship with the priest in this case was not fiduciary in nature because it “was not characterized by the unique degree of trust and confidence required of a fiduciary relationship.” In particular, the court noted that the plaintiff had not alleged a formal pastoral counseling relationship between herself and the priest. Rather, she claimed that her “whole association” with the priest was one of “counseling.” The court disagreed:

The plaintiff’s interactions with the priest were largely social. She did not meet him for specific counseling appointments, but, rather, the two went on lunch and dinner dates, shopping trips, walks on the beach and trips to see movies. Also, the plaintiff has admitted that many of the conversations she considered counseling took place immediately after mass with other congregants present and that the counseling primarily involved discussions about their relationship …. While the priest may have counseled the plaintiff from time to time, as a priest may for any parishioner, he was not her counselor. Moreover … the plaintiff was well over the age of majority throughout the time of their consensual interactions. While we do not condone the defendant’s behavior, we conclude that no fiduciary relationship existed between him and the plaintiff; consequently, no fiduciary duty was breached.

Archdiocese

The court also dismissed the plaintiff’s negligent supervision claim against the archdiocese on the ground that there can be no negligent supervision if an employee does not engage in wrongful behavior. Since the priest had not breached a fiduciary duty, the archdiocese could not be liable on the basis of negligent supervision for his actions.

Application. This case is important because it is one of the most extensive discussions of the liability of ministers and churches for acts of sexual misconduct on the basis of a breach of a fiduciary duty. The court refused to find that a priest who was not involved in a counseling relationship with a church member has a fiduciary duty toward that person, and therefore the priest could not be liable on the basis of a breach of such a duty for any inappropriate sexual conduct. There may be other bases of liability, but not this one. Further, since the priest was not liable, the archdiocese could not be liable since its liability (whether on the basis of negligent hiring or supervision, or breach of a fiduciary duty) required that the priest’s acts be wrongful. Ahern v. Kappalumakkel, 903 A.2d 266 (Conn. App. 2006).

Legal Developments

The Ministerial Exception and Lawsuits

A federal court in Washington ruled that the “ministerial exception” prevented it from resolving several claims against a religious organization.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Denominations - Legal Liability, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

The Ministerial Exception and Lawsuits

A federal court in Washington ruled that the “ministerial exception” prevented it from resolving several claims against a religious organization.

Richard R. Hammar, J.D., LL.M., CPA

Key point 8-06. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

Key point 8-08.2. 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 non-employees.

Key point 8-17. The Fair Labor Standards Act mandates that employers pay the minimum wage, and overtime compensation, to employees who work for an enterprise engaged in commerce. There is no exception for religious organizations, but there are exceptions for certain classifications of employees.

* A federal court in Washington ruled that the “ministerial exception” prevented it from resolving several claims brought by a seminary student against a religious organization, including sexual harassment; retaliation; negligent hiring, retention, and supervision; violation of a state minimum wage law; and emotional distress. A seminary student from Mexico (the “victim”) was assigned to a parish in Washington to assist the officiating priest. He performed several duties including assisting the officiating priest in the conduct of worship services, answering the phone for the church, working with the church youth group, and setting appointments for couples seeking marriage counseling. The victim claimed that he was sexually harassed on numerous occasions by the officiating priest. To illustrate, he alleged that the priest frequently sent him sexually explicit emails and videos, repeatedly asked him to have dinner with him, told him that he was very handsome, dedicated songs to him, told him that he believed the church should accept homosexuals, and made sexual advances toward him during two spiritual retreats. The victim complained of this behavior to the archdiocese, which resulted in an internal investigation and the transfer of the victim to another parish. The victim claimed that the archdiocese took additional adverse actions against him on account of his accusations, and as a result he sued the archdiocese in federal court. The lawsuit asserted several grounds for relief, including (1) sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964; (2) negligent hiring, retention and supervision of employees; (3) violations of the state minimum wage law; and (4) emotional distress.

Title VII

Title VII of the Civil Rights Act of 1964 bars “covered employers” from discriminating in employment decisions on the basis of the race, color, national origin, sex (including sexual harassment), or religion of an employee or applicant for employment. Covered employers are those engaged in commerce and employing 15 or more employees.

The court acknowledged that the First Amendment guaranty of religious freedom has created a “ministerial exception” to Title VII, and that this exception prohibits a court from “inquiring into the decisions of a religious organization concerning the hiring, firing, promotion, rate of pay, placement or any other employment related decision concerning ministers and other non-secular church employees.” Further, the courts may make “a factual evaluation of the function of the position, rather than looking solely to ordination, in deciding whether the ministerial exception applies to a particular employee.” The court noted that the victim was directly engaged in the spiritual functions of the church, and so the ministerial exception applied even though he was not an ordained minister.

However, the court cautioned that ministerial exception “does not foreclose all employment claims against a religious employer, but simply limits them.” When a sexual harassment claim is made against a religious employer, “a plaintiff must show that he was sexually harassed and that the harassment created a hostile work environment. Because the evaluation of a sexual harassment claim involves an entirely secular inquiry that does not intrude into areas concerning the doctrines of a religious organization, it is allowed.”

If an employee creates a “hostile work environment” due to acts of sexual harassment, his or her employer may be liable in two situations:

First, if the hostile work environment results in an adverse employment action (i.e., discipline, dismissal) against a victim of the harassment, the employer may be held liable. The court concluded that the First Amendment prohibited a religious organization from being liable on this basis for sexual harassment committed by a member of the clergy. It observed, “The archdiocese is able to choose its representatives free from government interference and in accordance with the dictates of its faith and conscience. Because the federal judiciary cannot evaluate whether its employment decision was based on legitimate or illegitimate reasons without offending the First Amendment, such an inquiry is forbidden.”

Second, liability can be imposed on an employer for allowing a hostile work environment to exist. However, to avoid liability in this second scenario, an employer can assert a special affirmative defense. This affirmative defense has two elements. First, the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Second, a victim of the harassment unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer, or otherwise failed to avoid the alleged harm. The court noted that “the success of this defense requires a court to perform an inquiry into the actions of both the employer and the employee. However, the power of a court to conduct this inquiry is limited when a sexual harassment claim is made against a religious employer by an employee covered by the ministerial exception.” The court may only consider the following three questions: (1) Was the victim subjected to a hostile work environment? (2) If so, did he exercise reasonable care to correct that environment? (3) Did he unreasonably fail to avail himself of those measures?

Retaliation

Title VII prohibits employers from “retaliating” against victims of employment discrimination who challenge the discrimination. The victim in this case claimed that the archdiocese retaliated against him after he complained of the priest’s conduct by transferring him to another parish and reducing his duties. The court noted that a retaliation claim requires a victim of discrimination to prove that he or she suffered an “adverse employment action” as a result of disclosing the discrimination to the employer. However, the court concluded that “decisions concerning promotions, transfers, rates of pay, selection of assignments, and duties performed are all protected choice matters of church administration, and the court is prohibited from evaluating them. The victim is foreclosed, as a matter of law, from relying on these protected decisions as acts of retaliation.”

Negligent hiring, retention, and supervision

The victim claimed that the ministerial exception applied only to Title VII claims, and did not prevent him from suing the archdiocese for negligent hiring, retention, and supervision. The court disagreed:

The ministerial exception to Title VII is based not upon Title VII but, rather, on the First Amendment. Just as there is a ministerial exception to Title VII, there must also be a ministerial exception to any state law cause of action that would otherwise impinge on the church’s prerogative to choose its ministers or to exercise its religious beliefs in the context of employing its ministers.

The court pointed out that the very nature of the victim’s negligence claim would require it to evaluate the reasonableness of the archdiocese’s protected employment choices in order to ascertain if it acted negligently in hiring, retaining, or supervising the offending priest. It concluded that “this type of inquiry is prohibited by the First Amendment’s ministerial exception.”

Minimum wage claim

The court dismissed the victim’s claim that the archdiocese violated a state minimum wage law. It concluded:

This claim concerns decisions regarding the rate of pay for non-secular church employees and must also be dismissed under the ministerial exception. The … ministerial exception applies to both state and federal claims, and prohibits a court from inquiring into the decisions of a religious organization concerning the hiring, firing, promotion, rate of pay, placement or any other employment related decision concerning ministers and other non-secular church employees. This most certainly includes questions concerning the amount of compensation owed a visiting seminarian student. Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999).

Intentional infliction of emotional distress

The victim claimed that the archdiocese was guilty of intentionally inflicting emotional distress upon him by reporting him to immigration authorities. The court noted that a claim of intentional infliction of emotional distress requires conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The court concluded that this high standard was not met by the reporting of the victim to immigration authorities:

There is no possibility that reasonable minds could find that the archdiocese’s reporting of the victim to immigration authorities could be seen as conduct that is beyond all possible bounds of decency. Reporting persons who may be in this country illegally to the authorities is not conduct so extreme as to be unacceptable in civilized society. As a matter of law, reasonable minds could not differ as to whether providing notice to the proper authorities concerning suspected immigration violations rises to a level of outrage.

Application. This case is significant for the following reasons:

1. The court broadly construed the ministerial exception, and applied it not only to a sexual harassment and retaliation claim by a seminary student under Title VII, but also to (1) negligent hiring, retention, and supervision claims involving ministers, and (2) claims by ministers regarding compensation, including their entitlement to minimum wage and overtime under state or federal law.

2. The court ruled that the reporting of a foreign worker to immigration officials did not amount to an infliction of emotional distress for which the employer could be found liable. Alcazar v. Corporation of Catholic Archbishop of Seattle, 2006 WL 3791370 (W.D. Wash. 2006).