Background
A federal appeals court addressed the complex legal issues surrounding the sexual seduction of church employees by a minister. The court concluded that two female church employees could sue the minister who had seduced them since he had "held himself out" as a qualified marital counselor. However, the court dismissed all of the employees' claims against the church. These included sex discrimination; sexual harassment based on a "hostile work environment"; "quid pro quo" sexual harassment; respondeat superior; ratification; and negligent retention. The court was persuaded that the church was unaware of the pastor's actions, and therefore could not be legally responsible for them.
When a minister engages in a sexual relationship with a church employee, several legal consequences may result affecting the minister, church, and employee. Many of these consequences were illustrated in a recent federal appeals court ruling. The court's ruling will be instructive to all church leaders. This article will summarize the facts of the case, explain the court's ruling, and evaluate the importance of the case to other churches and church staff members.
A church hired a minister of education. The new minister's duties did not include counseling, and he knew that he was not responsible for providing spiritual counseling to church members. He also knew that the church had a written policy of referring church members in need of non—pastoral counseling to a licensed professional counselor. Nevertheless, the minister began counseling with two women after assuring them that he was qualified by both education and experience to provide marital counseling. The women assumed that he was authorized by the church to provide counseling. The minister entered into a sexual relationship with both women, and hired both of them as church employees. After several months, each of the women quit seeing the minister.
The two women worked next to each other in the church office. Eventually, one of them informed the other of her affair with the minister and was shocked to learn of the other's similar experience. The women promptly informed a church deacon of the affairs and the minister was confronted immediately. He confessed to the church's senior minister that he had committed adultery with both women, and accepted the church's request to resign. The two women were placed on administrative leave with pay pending an investigation, and a few months later they were dismissed on the basis of the church's teachings against adultery.
The women later sued the former minister on the basis of both clergy malpractice and breach of fiduciary duties. Although the minister testified that he sometimes discussed scripture in his counseling sessions with the women, the jury found that the counseling he provided was "essentially secular" in nature. At trial, the women presented evidence that the minister committed malpractice by breaching his duties as a marriage counselor-not only by expressing love and affection for each of them and encouraging them to express these feelings for him, but also by engaging in sexual intercourse with them on a number of occasions. They also presented evidence that the minister breached his fiduciary duties, not only by having sexual intercourse with them, but also by disclosing their confidences, including intimate details of their marriages and sexual histories.
The women also sued the church, claiming that it was guilty of unlawful sex discrimination and sexual harassment, and that it was legally responsible for the former minister's actions on the basis of respondeat superior, ratification, and negligent retention.
A jury concluded that the former pastor had committed malpractice and breached his fiduciary duties, and it awarded both regular and punitive damages. However, the jury dismissed all of the women's claims against the church. The case was appealed.
The claims against the former minister
The civil courts can resolve some church disputes
The women claimed that the dismissed minister's conduct constituted "malpractice in pastoral counseling." The minister claimed that pastoral counseling is rooted in religion and cannot be the basis for civil liability. He acknowledged that "purely secular" counseling provided by a minister may be subject to civil liability, but not when the counseling incorporates some religious instruction. He stressed that he occasionally discussed scripture in his counseling sessions with the women, and this demonstrated that the counseling he provided was not purely secular and therefore he could not be sued for his actions. The appeals court rejected the minister's arguments. The court observed:
The first amendment does not categorically insulate religious relationships from judicial scrutiny, for to do so would necessarily extend constitutional protection to the secular components of these relationships …. [T]he constitutional guarantee of religious freedom cannot be construed to protect secular beliefs and behavior, even when they comprise part of an otherwise religious relationship between a minister and a member of his or her congregation. To hold otherwise would impermissibly place a religious leader in a preferred position in our society.
Some church disputes cannot be resolved by the courts
The court acknowledged that there are some internal church disputes that civil courts cannot resolve:
[The first amendment] protects religious relationships, including the counseling relationship between a minister and his or her parishioner, primarily by preventing the judicial resolution of ecclesiastical disputes turning on matters of "religious doctrine or practice." The sanctity of these relationships is further protected by other religious freedoms, including the limited right to engage in conduct that is rooted in religious belief. Under the evidence produced at trial, however, neither of these constitutional protections prevents [the former minister] from being held liable for his misconduct as a marriage counselor and a fiduciary who occasionally discussed scripture within the context of two otherwise secular counseling relationships with members of his congregation.
No liability based on clergy malpractice
The court agreed with the former minister that he could not be liable for the women's injuries on the basis of "clergy malpractice." It observed:
Because the [civil courts] must abstain from ecclesiastical disputes involving questions of doctrine or practice, state courts have rejected uniformly claims for clergy malpractice. This is because such a claim requires definition of the relevant standard of care. Defining that standard could embroil courts in establishing the training, skill, and standards applicable for members of the clergy in a diversity of religions with widely varying beliefs. Furthermore, defining such a standard would require courts to identify the beliefs and practices of the relevant religion and then to determine whether the clergyman had acted in accordance with them. Thus, as these courts have correctly concluded, to recognize a claim for clergy malpractice would require courts to identify and apply the teachings of a particular faith, thereby making the judiciary responsible for determining what conduct and beliefs are part of a particular religion.
Key point. The courts have consistently refused to find clergy liable on the basis of "malpractice" for their pastoral counseling. However, this case illustrates that this rule only applies to the content of counseling that is religious in nature, and not to inappropriate behavior that is engaged in during the counseling relationship. The court concluded that ministers who engage in sexual contact with counselees in the course of marriage counseling may be sued on the basis of malpractice-as marriage counselors rather than as clergy.
Liability based on counseling that is wholly or partly secular
The former minister insisted that he could not be guilty of malpractice as a marriage counselor unless his counseling was purely secular in nature. And, since he occasionally discussed scripture in his counseling sessions with the two women, his counseling was not purely secular. The court disagreed, noting that the minister's marriage counseling was "essentially secular" in nature and that this was enough for him to be guilty of malpractice as a marriage counselor.
The court concluded that the first amendment did not prevent the former minister from being sued for malpractice as a marriage counselor or for breach of fiduciary duties "not derived from religious doctrine." It explained its reasoning as follows:
[B]ecause the jury found that [the former minister] held himself out as possessing the education and experience of a professional marriage counselor, his counseling activities with the [two women] were judged, not by a standard of care defined by religious teachings, but by a professional standard of care developed through expert testimony describing what a reasonably prudent counselor would have done under the same or similar circumstances.
The court based this conclusion in part upon another federal appeals court ruling allowing a church member to claim that her minister had a "duty to possess and apply the skill and knowledge of a reasonably well qualified person providing psychological counseling" because the minister "held himself out to be providing the services of a psychological counselor". Dausch v. Rykse, 52 F.3d 1425 (7th Cir.1994).
Breach of fiduciary duties
The court concluded that the first amendment did not bar the former minister from being sued for breaching the fiduciary duties he owed to the two women as a marital counselor. This is an important ruling. It indicates that marital counselors may be deemed fiduciaries, and as such they are held to a very high standard of ethical behavior with regard to those they counsel. This duty is breached when a counselor engages in sexual relations with a counselee. The court also ruled that it may be breached by "betraying confidences" obtained in a "relation of trust" (such as a counseling relationship). In other words, apart from the sexual misconduct, the former minister was liable to the two women for disclosing confidences he obtained during counseling sessions with them. This aspect of the ruling illustrates the importance of maintaining the confidentiality of information shared during counseling sessions. Disclosing such information without permission may lead to legal liability based on a breach of the counselor's fiduciary duties.
Conclusion
The court concluded that for the former minister to "invoke the protection of the first amendment for conduct taking place within his counseling relationships" with the two women, he "must assert that the specific conduct allegedly constituting a breach of his professional and fiduciary duties was rooted in religious belief." The court then referred to the "obvious truth" that "the activities complained of by the [two women] were not part of his religious beliefs and practices and he is not so brazen as to now contend otherwise."
The claims against the church
The two women not only sued the former minister, they also sued the church. They claimed that the church not only engaged in unlawful sex discrimination and sexual harassment, but also was legally responsible for the former minister's behavior on the basis of respondeat superior, ratification, and negligent hiring. The court rejected all of these claims, and dismissed the women's lawsuit against the church. Its conclusions are summarized below.
Sex discrimination
The women claimed that the church committed unlawful "sex discrimination" in violation of Title VII of the Civil Rights Act of 1964 by dismissing them from employment. To win a sex discrimination case under Title VII, a plaintiff must first prove by a "preponderance of the evidence" a "prima facie case" of discrimination. A plaintiff establishes a prima facie case of sex discrimination by proving: (1) she was discharged; (2) she was qualified for the position; (3) she was within the protected class at the time of discharge; and (4) she was replaced by someone outside the protected class, or otherwise discharged because of her sex. If a plaintiff is successful in establishing a prima facie case of discrimination, the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse employment decision. If the employer demonstrates a nondiscriminatory reason for its adverse employment action, then the presumption is rebutted and the plaintiff must prove that the nondiscriminatory reason was a pretext for discrimination.
The court concluded that the women had failed to demonstrate that the church committed sex discrimination, noting that:
The [women] did not … produce any evidence suggesting that they were fired because of their gender. In fact, the record shows that [the former minister], who also committed adultery, was forced to resign, and that [the church's] position against adultery was neutral with respect to sex, longstanding, and understood by both [women] at the time they engaged in sexual conduct with [the minister].
Key point. Churches are free to dismiss employees for violation of religious standards, so long as such dismissals are not a pretext for unlawful discrimination and "similar cases are treated similarly." In this case, the church avoided liability for sex discrimination since it treated similarly a male and two females guilty of adultery. Further, the church's policy of neutrality in enforcing its moral teachings was "longstanding" and was "understood" by the two women when they engaged in sexual relations with the former minister.
Hostile environment" sexual harassment
Sexual harassment is a form of "sex discrimination" prohibited by Title VII of the Civil Rights Act of 1964. Note that Title VII only applies to employers that (1) have 15 or more employees, and (2) are engaged in interstate commerce. The court in this case assumed that Title VII applied to the church, without any explanation.
Key point. Title VII does not apply to most churches-since most churches have fewer than 15 employees. However, most states have enacted their own civil rights laws that often ban sex discrimination and sexual harassment, and it is much more likely that these state laws will apply to churches. As a result, sexual harassment is a theory of liability that all churches should take seriously.
Key point. Churches with 15 or more employees (full—time or part—time) on their payroll will be subject to Title VII if they are engaged in interstate commerce. Many churches will be deemed by the EEOC and the courts to be engaged in commerce. The United States Supreme Court issued a ruling in 1997 containing a very broad definition of the term "commerce' in the context of a nonprofit religious organization. This case, and the commerce requirement, are discussed in a feature article in the March—April 1998 issue of this newsletter.
A current EEOC regulation entitled "EEOC Guidelines on Discrimination Because of Sex" specifies, in part:
(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
This regulation demonstrates that sexual harassment includes at least two separate types of conduct: (1) "Quid pro quo" harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship, or (2) "hostile environment" harassment, which refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature.
The court concluded that the church was not guilty of "hostile environment" sexual harassment. It noted that in order for the two women to establish "hostile environment" sexual harassment they needed to "produce evidence showing, among other things, that [the church] knew or should have known of the harassment in question and failed to take prompt remedial action." However, since it was established that the church "took prompt remedial action upon learning of [the minister's] misconduct," the two women had to prove that the church should have known of the minister's behavior before it was disclosed. The court concluded that the women failed to do so. The women claimed that the former minister had offended a few other women by complimenting them on their appearances and hugging them. This evidence, even if true, was not enough to demonstrate that the church "knew or should have known" of a "hostile environment."
"Quid pro quo" sexual harassment
As noted above, sexual harassment also includes unwelcome sexual advances or requests for sexual favors if submission to such conduct "is made either explicitly or implicitly a term or condition of an individual's employment" and "submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual." This type of sexual harassment is called "quid pro quo" sexual harassment. The court rejected the two women's claim that the church had engaged in this form of sexual harassment. It noted that for the women to establish quid pro quo sexual harassment they
were required to produce evidence showing, among other things, that the harassment complained of affected tangible aspects of their compensation, terms, conditions, or privileges of employment. In addition, they were required to develop evidence demonstrating that their acceptance or rejection of the harassment was an express or implied condition to the receipt of a job benefit or the cause of a tangible job detriment. [But the women's] own testimony-that they were subjected to mild criticism of their work and told that they would not be promoted to positions they knew did not exist-indicates that their jobs were not tangibly and detrimentally affected by their decisions to end their sexual relationships with [the minister] …. Further, there is no objective evidence in the record supporting the [women's] claims that they engaged in sex with [the minister] under an implied threat of discharge if they did not.
Respondeat superior
Under the doctrine of respondeat superior, an employer is legally responsible for the behavior of an employee that occurs within the scope of his or her employment. The court rejected the women's claim that the church was responsible for the former minister's behavior on this basis since there was no evidence that the church had authorized him to engage in marital counseling. The court pointed out that the former minister's "job description and responsibilities as [minister of education] indicate that he was not hired to provide counseling, that he knew that counseling was not part of his job description, that the [minister of education] was not responsible for providing spiritual counseling, and that [the church] had a policy of referring non—pastoral counseling to a licensed professional counselor.
Ratification
The two women asserted that the church was legally responsible for the former minister's behavior on the basis of ratification. That is, the church had "ratified" the minister's actions and therefore was legally responsible for them. The court acknowledged that the doctrine of ratification "imposes liability on an employer when that employer adopts, confirms, or fails to repudiate the unlawful acts of an employee of which the employer is aware." However, the church could not have ratified the former minister's misconduct since it was not aware that he was engaging in counseling.
Negligent retention
Finally, the court rejected the women's claim that the church was legally responsible for their injuries on the basis of negligent retention. The court acknowledged that "an employer that negligently retains in his employ an individual who is incompetent or unfit for the job may be liable to a third party whose injury was proximately caused by the employer's negligence." However, to prove negligent retention, the two women had to show that the church "knew or should have known that [the former minister's] conduct as a supervisor or counselor presented an unreasonable risk of harm to others." The court concluded that there was no evidence that the church "knew or should have known" that the former minister was engaging in marital counseling or that he was likely to engage in sexual misconduct or disclose confidences as a marriage counselor.
Significance of the case to other churches
The court's decision is binding only on other federal courts in the fifth federal circuit (which includes the states of Louisiana, Mississippi and Texas). Nevertheless, decisions by federal appeals courts often are viewed as highly persuasive in other states, and so the case deserves serious attention by all church leaders. The court's discussion of a wide range of liability issues for both ministers and churches reinforces the relevance of this case.
What this means for churches
1. Pastoral liability for sexual misconduct during a counseling relationship. The court reached the following conclusions:
a. Clergy malpractice
The court concluded that ministers who engage in sexual misconduct during a counseling relationship cannot be sued on the basis of "clergy malpractice" since the first amendment bars the civil courts from resolving such claims.
b. Malpractice by a marriage counselor
The first amendment does not bar ministers who engage in marriage counseling that is wholly or partly "secular" in nature from being sued for malpractice as a result of sexual misconduct with a counselee. The court concluded:
[B]ecause the jury found that [the former minister] held himself out as possessing the education and experience of a professional marriage counselor, his counseling activities with the [two women] were judged, not by a standard of care defined by religious teachings, but by a professional standard of care developed through expert testimony describing what a reasonably prudent counselor would have done under the same or similar circumstances.
The court suggested that a minister who engages in marriage counseling that is purely religious in nature may be insulated from liability based on malpractice. However, it concluded that "the first amendment's respect for religious relationships does not require a minister's counseling relationship with a parishioner to be purely secular in order for a court to review the propriety of the conduct occurring within that relationship." In other words, the fact that the former minister occasionally referred to the Bible in counseling sessions that otherwise could be characterized as "essentially secular" did not insulate him from liability based on malpractice.
c. Licensed psychologists
The court suggested that ministers who are licensed psychologists or counselors will be held to a higher standard, and that the first amendment may not bar claims against them for sexual misconduct during a counseling relationship.
d. Breach of fiduciary duty
Ministers who engage in sexual misconduct during a counseling relationship may be sued on the basis of a breach of a fiduciary duty. The court concluded that a fiduciary duty arose in this case because the two women sought out the minister as a marriage counselor. While the court suggested that a purely pastoral counseling relationship may not be "fiduciary" in nature, this was not the case when a pastor holds himself out as a marriage counselor and is sought out in that capacity by church members and others.
Key point. Ministers who engage in sexual contact with a counselee may be guilty of a number of "intentional wrongs" including battery, breach of a fiduciary duty, and intentional infliction of emotional distress. Generally, intentional wrongs are not covered under a church's liability insurance policy, and so a minister who commits such acts may find that he must pay for his own attorney and any portion of a judgment or settlement attributable to his conduct. Further, such acts constitute a criminal offense in several states.
Example. Rev. K is senior pastor at his church. He is not a licensed psychologist or counselor, but he does counsel with church members and occasionally with non—members. He is often sought out for marriage counseling. All of his counseling is based on scriptural rather than secular principles. Rev. K is sued for engaging in sexual misconduct with a counselee. Based on the case addressed in this article: (1) Rev. K would not be liable on the basis of clergy malpractice. (2) He would not be liable for malpractice as a marriage counselor since he did not hold himself out as a marriage counselor. (3) He would not be liable as a secular counselor since he never held himself out as a practitioner of secular counseling. (4) He would not be liable for a breach of his fiduciary duties since no such duty arises in the context of pastoral counseling based solely on scriptural principles. (5) He may be liable for a number of "intentional wrongs" including battery and intentional infliction of emotional distress.
Example. Same facts as the previous example, except that Rev. K represents himself to be a marriage counselor based on both training and experience. Based on the case addressed in this article: (1) Rev. K would not be liable on the basis of clergy malpractice. (2) He may be liable for malpractice by a marriage counselor since he held himself out as a marriage counselor. (3) He would not be liable as a secular counselor since he never held himself out as a practitioner of secular counseling. (4) He may be liable for a breach of his fiduciary duties. (5) He may be liable for a number of "intentional wrongs" including battery and intentional infliction of emotional distress.
Example. Same facts as the first example, except that Rev. K uses mostly secular principles in his counseling, though he occasionally refers to the Bible. Based on the case addressed in this article: (1) Rev. K would not be liable on the basis of clergy malpractice. (2) He may be liable for malpractice as a marriage counselor since his counseling is "essentially secular" despite occasional references to the Bible. (3) He would not be liable as a secular counselor, since he never held himself out as a practitioner of secular counseling. (4) He may be liable for a breach of his fiduciary duties. (5) He may be liable for a number of "intentional wrongs" including battery and intentional infliction of emotional distress.
Example. N is a licensed counselor who is hired by a church to provide counseling to members. He is not a minister. While he occasionally refers to the Bible, his counseling is almost entirely based on secular principles. He engages in inappropriate sexual contact with a female counselee. N can be sued for malpractice as a secular counselor. He also may be liable for a breach of his fiduciary duties and a number of "intentional wrongs" including battery and intentional infliction of emotional distress.
2. Betraying confidences. Church leaders should pay special attention to the court's conclusion that "betraying confidences" obtained in a "relation of trust" (such as a counseling relationship) is a violation of the counselor's fiduciary duties. It is common for ministers to receive confidential information in the course of counseling. This case illustrates the liability that may be incurred in disclosing such information without authorization.
Example. A church employee confesses to her minister that she embezzled church funds. The minister shares this information with the church board without the woman's permission. The minister may be legally responsible for this unauthorized disclosure on the basis of a breach of his fiduciary duties. This assumes that he was in a fiduciary relationship with the woman when he counseled with her. Note that some courts have ruled that the relationship between a minister and counselee is fiduciary in nature, but others have disagreed. In the case addressed in this article, the court ruled that the relationship between a minister and two counselees was fiduciary in nature because he engaged in marital counseling that was essentially secular in nature.
Some courts have concluded that the relationship between a minister and counselee is fiduciary in nature. An example is a 1993 ruling by the Colorado Supreme Court. Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993). In the Moses case, the court acknowledged that the clergy—parishioner relationship "is not necessarily a fiduciary relationship." However, the clergy—parishioner relationship often involves "the type of interaction that creates trust and reliance" and in some cases will constitute a fiduciary relationship.
In summary, ministers who obtain confidential information during counseling sessions need to recognize that they may be deemed to be in a fiduciary relationship with their counselees, and that they may be liable for any unauthorized disclosure of this information on the basis of a breach of their fiduciary duties.
3. Sex discrimination. One of the most important aspects of this case was the court's conclusion that the church did not commit unlawful sex discrimination when it fired the two female employees since it did not treat them any less favorably than it treated the male minister who was sexually involved with them. The court concluded:
The [women] did not … produce any evidence suggesting that they were fired because of their gender. In fact, the record shows that [the former minister], who also committed adultery, was forced to resign, and that [the church's] position against adultery was neutral with respect to sex, longstanding, and understood by both [women] at the time they engaged in sexual conduct with [the minister].
Note that the court mentioned 3 reasons why the church was not guilty of sex discrimination: (1) its policy against adultery was neutral with respect to sex; (2) the policy was longstanding; and (3) the two women understood the policy at the time they engaged in sexual relations with the minister. What about your church? Do you have a policy against extramarital sexual relations by employees? If so, does it meet these conditions? Is it neutral with respect to sex, meaning that it treats men and women equally? Is it a longstanding policy? This is not necessarily a requirement, but it does tend to support the legitimacy of a policy. And, are all employees aware of your policy? If so, how was it communicated to them and could you prove this?
Key point. Churches can discriminate against employees on the basis of religion, but they must be able to demonstrate that religion is not a pretext for discriminating against a protected group of workers. If the church had dismissed the women but not the minister, the religious exemption would not apply.
Example. Rev. B is an associate minister at a church. He has an affair with a female church employee, and the church decides to dismiss the female for her violation of the church's teachings against extramarital sexual relations. The church board decides to retain Rev. B, but warns him that any recurrence of such behavior in the future could result in his dismissal. Assuming that the church is subject to Title VII of the Civil Rights Act of 1964 (15 or more employees, and engaged in interstate commerce), it has committed unlawful sex discrimination by treating a female employee less favorably than a male employee who were both guilty of the same misconduct.
Example. In 1995 a church dismisses a female employee because she was pregnant but unmarried. It based this action on its doctrinal opposition to extramarital sexual relations. In 1998, the church board learns that a married male employee has had a sexual relationship with another woman. It warns him to discontinue the relationship, but does not dismiss him. Assuming that the church is subject to Title VII of the Civil Rights Act of 1964 (15 or more employees, and engaged in interstate commerce), it has committed unlawful sex discrimination by treating a female employee less favorably than a male employee who were both guilty of the same misconduct.
Example. Over the past 20 years, a church has dismissed 3 employees for extramarital sexual relations-two female and one male. The church board was not aware of any other cases of extramarital sexual relations by employees. In 1998 the church dismisses a female employee for extramarital sexual relations. She claims that the church has committed unlawful sex discrimination because it has dismissed 3 women but only 1 man. She will lose-so long as the church can demonstrate that it was aware of only these 4 cases. If the church treats all cases in the same manner, it cannot be guilty of sex discrimination-even if more women are dismissed than men.
Example. Same facts as the previous example, except that the female employee claims she was never informed about the church's policy against extramarital sexual relations. Church leaders acknowledge that the "policy" was never put in writing. They insist that it was so "obvious" that the church would not tolerate such behavior that they did not think that it was necessary to address it in writing. The church may be liable for sex discrimination. In the case addressed in this article the court emphasized the importance of communicating such a policy to employees. If they are not aware of it, how can they be bound by it? It is risky to make assumptions that employees will be aware of the church's unwritten policies and expectations. Churches should reduce such policies to writing, and communicate them with all employees. Ideally, all employees should sign a written form acknowledging their awareness of the policy and their agreement to be bound by it.
4. Sexual harassment in employment. The court's decision provides an excellent overview of the law of sexual harassment. Here are the key points to remember:
• Title VII. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. Only churches with 15 or more employees, and that are engaged in interstate commerce, are subject to Title VII.
• State law. Sexual harassment is a form of sex discrimination prohibited by many state civil rights laws. It is much more likely that such laws will apply to churches, since they often apply to employers with fewer than 15 employees. In addition, there is no interstate commerce requirement.
• Two kinds of sexual harassment. There are two kinds of sexual harassment-"hostile environment" and "quid pro quo." Quid pro quo harassment refers to conditioning employment opportunities on submission to a sexual or social relationship. Hostile environment sexual harassment refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature.
• Intimidating, hostile, or offensive behavior required. Hostile environment sexual harassment requires more than inappropriate behavior. The behavior must be "intimidating, hostile, or offensive." The court concluded that this test was not met, despite the women's claim that the former minister had offended a few other women by complimenting them on their appearances and hugging them.
• Employer liability. Guidelines published by the EEOC specify:
[A]n employer … is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The [EEOC] will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity.
With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.
If the former minister was the church's agent or was a "supervisory employee," the church could have been responsible for his acts of sexual harassment whether or not it knew or should have known they were occurring-even if they were strictly forbidden by the church's policies. It is possible if not likely that a minister of education would be deemed an agent or supervisory employee.
Surprisingly, the federal appeals court was not aware of this rule, and mistakenly assumed that the church could not be liable for the former minister's sexual harassment unless it "knew or should have known" of his behavior.
• Mild criticism not enough. Quid pro quo sexual harassment requires an employee to prove that the harassment affected the compensation, terms, conditions, or privileges of employment, and that acceptance or rejection of the harassment was a condition to the receipt of a job benefit or the cause of a tangible job detriment. The court concluded that the two women failed to meet this requirement: "[But the women's] own testimony-that they were subjected to mild criticism of their work and told that they would not be promoted to positions they knew did not exist-indicates that their jobs were not tangibly and detrimentally affected by their decisions to end their sexual relationships with [the minister] …. Further, there is no objective evidence in the record supporting the [women's] claims that they engaged in sex with [the minister] under an implied threat of discharge if they did not."
5. Ratification. The court acknowledged that the doctrine of ratification "imposes liability on an employer when that employer adopts, confirms, or fails to repudiate the unlawful acts of an employee of which the employer is aware." This is an important observation, for it illustrates that churches can be legally responsible for injuries resulting from their failure to repudiate the unlawful or harmful acts of an employee or volunteer. The court concluded that the church could not be responsible for the former minister's actions on the basis of ratification since it was not aware that he was engaging in counseling and had no evidence of wrongful behavior. On the other hand, the result would have been different had church leaders been aware of the counseling and of wrongful behavior.
Example. Several parents complain to church board members that a youth pastor is engaging in inappropriate contact with minors. The board members do nothing. Over the next few months, the youth pastor molests another minor. The church can be liable for the youth pastor's wrongdoing on the basis of ratification since church leaders were made aware of the pastor's actions but did not respond.
6. Negligent retention. Churches can be legally responsible for retaining a volunteer or employee after receiving information indicating that this person poses a risk of harm to others. However, the two women failed to prove that the church was guilty of negligent retention since they did not establish that the church "knew or should have known that [the former minister's] conduct as a supervisor or counselor presented an unreasonable risk of harm to others." In addition, the court reached the perfectly logical conclusion that a church cannot be liable for negligently retaining a minister who commits adultery with two female employees if the employees themselves, who worked next to each other in the church office, were not aware of the other's relations with the minister. This will be a useful precedent to other churches that are accused, in hindsight, of negligently retaining a minister.
7. The church's lack of knowledge. The court concluded that the church was not aware that the minister of education was engaging in unauthorized marital counseling, despite the fact that (1) on one occasion an associate minister of the church walked into his office and found him alone with one of the two female employees who later filed the lawsuit; (2) the two female employees provided several examples of other women who "felt uncomfortable" around the dismissed minister; and (3) the senior pastor told the minister of education that his car was seen parked outside the home of one of the two female employees.
Key point. Had the church known that the minister was violating church policy by engaging in unauthorized counseling, the court would have found it liable for the minister's wrongful acts on several grounds. This illustrates a critical point-churches that have adopted policies must be sure those policies are being followed. A failure to abide by stated policies can expose a church to significant legal risks. Church leaders should periodically review policies, and assess whether or not they are being followed. If they are not, efforts should be made to immediately begin enforcing them. If this is no longer possible with respect to a particular policy, it should be abandoned.
8. The "what if's?" The church in this case handled matters very well. Consider the following: (1) it thoroughly screened the minister of education before hiring him; (2) church policy prohibited the minister from engaging in counseling; (3) church leaders had no knowledge that the minister of education was engaging in unauthorized counseling or in wrongful conduct; (4) when confronted by the two women with allegations of wrongdoing, the church immediately launched an investigation resulting in a paid leave of absence for the women and a forced resignation of the minister; and (5) the church offered comparable "severance packages" to the two women and the minister, thereby avoiding liability for sex discrimination.
What if any of these factors had not been present? What if the church had not screened the minister when he was hired? What if the church was aware of unauthorized counseling by the minister of education? What if the church was aware of the minister's wrongful acts but took no action against him, or treated the women less favorably than the minister? In any of these situations, the church would have faced potentially significant liability for the minister's wrongful acts.
This case illustrates how a church can meaningfully reduce its exposure to legal risk by how it handles employment decisions. Church leaders should ask themselves this question-if a woman in our church made similar allegations against our minister, would we be as successful in avoiding liability? Or, would we be vulnerable? This case will provide church leaders with helpful guidance in reducing exposure to legal risk.
Sanders v. Casa View Baptist Church, 1998 WL 27291 (5[th] Cir. 1998)
