Key point. 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 North Carolina dismissed a church employee’s allegations of sexual harassment on the ground that the offending behavior, even if true, was not sufficiently severe to amount to harassment. A church hired a woman (the “plaintiff”) as its director of music. As part of her job duties, the plaintiff worked with various musicians and was the staff member in charge of monitoring electronic equipment usage. A few years later the church hired a seminary student (Tim) as its youth director. The plaintiff worked with Tim occasionally, and saw him at weekly staff meetings. She later met with the church’s senior pastor, pursuant to the church’s personnel policy, and made the following allegations of sexual harassment:
• Prior to a worship service, Tim placed a photograph of a male bodybuilder wearing a Speedo bathing suit in the plaintiff’s music score. He later asked her if she had received his “surprise.”
• Soon after the picture incident, Tim showed the plaintiff a website project he had been working on for the church youth. When the plaintiff informed him that the technology committee would have to approve the project, he became angry and called her a “stupid [expletive].”
• While preparing for the trip to New York City, the plaintiff discovered a ticket to the “museum of sex,” which is located in New York City, in her office mailbox. Upon her return from New York, Tim asked her if she had received the coupon and if she had used it.
• The plaintiff went to Tim’s apartment to pick up her daughter from a church youth event. Tim suggested that her daughter and another member of the church youth group use his bedroom.
• At some point during his employment, Tim returned a computer to the plaintiff which had a copy of a movie (rated PG-13) in the DVD drive. The plaintiff’s husband viewed the film and found it offensive due to its sexual content.
The plaintiff alleged a host of other problems with Tim, and felt verbally and physically threatened by him. She sought psychiatric care and was treated for stress, anxiety and depression. The church never formally disciplined Tim for his behavior. However, his behavior led to a decision by church leaders not to renew his employment as youth director.
The plaintiff resigned her position at the church, and then sued the church for sexual harassment in violation of Title VII of the Civil Rights Act of 1964. Title VII makes it unlawful for an employer to discharge an employee or discriminate in “compensation, terms, conditions, or privileges of employment” because of the employee’s sex. The workplace environment is one of the terms and conditions of employment, and so Title VII prohibits verbal or physical conduct of a sexual nature that is “sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere.” The court concluded that the plaintiff had not presented “sufficient evidence on which a jury could find that the harassment was sufficiently severe or pervasive to alter the conditions of her employment.” It observed:
Title VII does not protect against all unwanted workplace distractions. Behavior such as “simple teasing, off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment …. A plaintiff must show that the harassment was “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.” As there is no doubt that [the plaintiff] subjectively regarded the environment as abusive, it must be determined whether a reasonable person would also see the environment as hostile or abusive. In making the objective determination as to whether the work environment was abusive, courts consider: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance. Courts must also consider all of the surrounding circumstances, including the social context in which the particular behavior occurs.
The court reviewed the five instances of a hostile environment alleged by the plaintiff (and summarized above) and concluded:
These five instances, without more, are not enough for a reasonable person to find that the work environment was hostile or abusive. While [Tim’s] actions were inappropriate, they were certainly not frequent, occurring only five times over sixteen months. Moreover, these five instances were neither particularly severe in nature nor physically threatening or humiliating. Tim never used sexually explicit language nor propositioned or inappropriately touched [the plaintiff], and did not engage in behavior that demeaned the status of women in general. Some of these incidents could interfere with a person’s work, but the extent of the interference cannot reasonably be considered great. While his behavior may have been unsuitable for the workplace, Title VII does not attempt to purge the workplace of vulgarity. These isolated incidents engendering mildly offensive feelings are not enough to sustain an action under Title VII.
Even considering these five instances in light of the plaintiff’s other interactions with Tim, the work environment cannot be seen by a reasonable person as hostile or abusive. Title VII does not ensure a happy workplace, only one that is free from unlawful discrimination.
The court also rejected the plaintiff’s contention that a church is a working environment that must be sheltered from the “cruder aspects of secular life,” thereby creating a lower standard for sexual harassment: “Her personal reasons for choosing to work for a church are not relevant to whether an objectively reasonable person would find the work environment to be abusive.”
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.” The court cited the following factors to consider in evaluating whether harassment has occurred: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance.
Second, the court rejected the plaintiff’s contention that the definition of hostile environment sexual harassment should be relaxed in cases involving church employees because of the expectation that such behavior will not occur in churches. The court concluded that the definition of harassment is the same for churches as for any other employer. 2008 WL 5216192 (M.D.N.C. 2008).
This Recent Development first appeared in Church Law & Tax Report, March/April 2009.