Key point 8-12.5. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.
* A federal court in New York ruled that a church’s associate pastor could sue the church as a result of the senior pastor’s sexual harassment. A church employed an adult male (the “plaintiff) as a part-time pastor to assist the church’s senior pastor. The plaintiff claimed that the senior pastor engaged in both sexual discrimination and sexual harassment against him. Specifically, he claimed that she: (1) changed the format of the service to restrict his participation and work responsibilities in weekly services and to increase the participation of a less senior female associate pastor; (2) limited his raises to the minimum allowed by denominational guidelines while at the same time giving the church’s female associate pastor additional responsibilities and significant pay raises; (3) belittled and embarrassed him in front of other pastors and the congregation for his disabilities; (4) berated him in her office; and (5) sexually harassed him by complimenting his appearance, calling him “hot,” saying how they would look good as a couple despite being asked to stop. The plaintiff alleged that he informed the church and a regional denominational agency of the abusive treatment but they failed to take any protective action. He further claimed that when he complained about the discrimination he was threatened with the loss of his pastoral license.
The plaintiff sued the church for sex discrimination and sexual harassment. The court’s decision is summarized below.
The court denied the church’s motion to dismiss the gender discrimination claim. It noted that the plaintiff alleged circumstances that gave rise to an inference of discrimination. In particular, he alleged that when the new senior pastor assumed her duties he began to experience a decrease in his work responsibilities and did not receive pay increases while a less experienced female associate pastor received raises and increased responsibilities. This treatment continued until he took medical leave and was fired. The court concluded: “Because the plaintiff alleges disparate treatment based on his gender by his direct supervisor which lead (sic) to a decrease in his job responsibilities and eventually his termination, he has sufficiently alleged gender discrimination.”
The plaintiff also alleged that the senior pastor’s actions amounted to sexual harassment. Sexual harassment is a form of gender discrimination prohibited by Title VII of the Civil Rights Act of 1964. Equal Employment Opportunity Commission (EEOC) regulations define sexual harassment as follows:
(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
According to this definition there are at least two separate types of sexual harassment:
(1) “quid pro quo” harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship, and
(2) “hostile environment” harassment, which refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature.
The plaintiff claimed that the senior pastor was guilty of hostile environment harassment. The court noted that a claim of hostile work environment requires showing: “(1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and (2) that a specific basis exists for imputing the objectionable conduct to the employer.”
The court noted that a plaintiff “can make a showing of hostile work environment by demonstrating either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of the working environment.” The court recounted the plaintiff’s evidence supporting his claim of hostile environment sexual harassment, and concluded that it was “not sufficiently linked to gender and does not rise to the level of a hostile working environment.”
Application. This case is important for two reasons. First, it illustrates that “hostile environment” sexual harassment is not implicated by every offensive comment or act. Rather, the harassment must be “severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive.”
Second, this case illustrates that sexual harassment is gender-neutral, and exists regardless of the gender of the perpetrator. 2010 WL 980708 (N.D.N.Y. 2010).
* See also “Clergy—selection,” Thibodeau v. American Baptist Churches, 994 A.2d 212 (Conn. App. 2010), in the Recent Developments section of this newsletter.
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