Sexual Harassment: Church Could Be Liable for Youth Pastor’s Actions

A sexual harassment policy is essential for any church.

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 Oregon ruled that a church could be liable for a youth pastor's acts of sexual harassment. A church selected a recent high school graduate (the "plaintiff") to work as an intern in its youth ministry. The plaintiff worked under the direct supervision of the youth pastor (Pastor Ted). A few years later, the plaintiff was employed as Pastor Ted's assistant. At this time, the plaintiff signed a document acknowledging that she had received, reviewed and understood the church's Sexual Misconduct Policy. She did not receive any additional training or instruction on the policy.

The plaintiff began to view Pastor Ted as a mentor, close friend and father figure. After working together for four years, Pastor Ted informed the plaintiff that his feelings for her had developed into romantic feelings. This was the first time Pastor Ted made statements of this kind. Plaintiff was 22 years old. Pastor Ted continued to express these feelings in conversations, letters and emails. Plaintiff never responded in kind. The extent of the physical contact between the two was limited to hand-holding, hugging, and a kiss on plaintiff's forehead. Pastor Ted also told the plaintiff that if anyone found out about his advances, the plaintiff's job and future in youth ministry could be at risk.

The church's senior pastor met with Pastor Ted on three occasions to discuss the need to maintain appropriate boundaries in his relationship with the plaintiff.

The plaintiff did not report Pastor Ted's conduct to the church for another two years. The day that she, accompanied by her mother, informed the senior pastor what had happened, Pastor Ted was given the opportunity to resign. He agreed to do so. The plaintiff continued her employment with the church, but conflicts arose between her and the senior pastor. The plaintiff eventually quit working at the church, and sued the church for damages resulting from Pastor Ted's behavior. Specifically, she sought recovery based on emotional distress, "hostile environment" sexual harassment, and "quid pro quo" sexual harassment.

Emotional distress

The plaintiff claimed that Pastor Ted's "outrageous actions, in manipulating his confidential relationship" with her in order to coerce her into having sexual relations with him and threatening her with termination for disclosing this conduct, constituted "an extraordinary transgression of the bounds of socially tolerable conduct." The court disagreed: "Plaintiff and Pastor Ted, as employee and supervisor, had a relationship that potentially heightened the outrageousness of the conduct. Even so, the specific conduct plaintiff alleges is insufficient to establish a prima facie claim for emotional distress …. Pastor Ted's conduct, while clearly inappropriate for a supervisor, does not rise to the level of outrageousness required to support an emotional distress claim."

Sexual harassment (hostile work environment)

Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating against any employee or applicant "with respect to compensation, terms, conditions or privileges of employment, because of such individual's sex." Sexual harassment is a form of sex discrimination prohibited by Title VII. The courts have identified two types of sexual harassment—"quid pro quo" and hostile environment. "Quid pro quo" harassment refers to conditioning employment opportunities on submission to a sexual or social relationship, while "hostile environment" harassment refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature. In general, an employer is liable for a supervisory employee's hostile environment sexual harassment.

If a supervisor engages in hostile environment sexual harassment but takes no "tangible employment decision" against a victim, the employer may assert an "affirmative defense" to liability. This defense consists of two elements:

(i) The employer "exercised reasonable care to prevent and correct promptly any sexually harassing behavior." This generally means that the employer adopted a written sexual harassment policy that was communicated to employees, and that contains a complaint procedure.

(ii) The victim "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." This generally means that the victim failed to follow the complaint procedure described in the employer's sexual harassment policy.

The plaintiff insisted that Pastor Ted's behavior created a hostile work environment, and therefore, since he was the plaintiff's supervisor, the church was responsible for this form of sexual harassment. The church asked the court to dismiss this claim on the basis of the affirmative defense since it had exercised reasonable care to promptly correct the harassment and the plaintiff failed to avail herself of the "preventive or corrective opportunities" provided under the church's Sexual Misconduct Policy.

The court concluded that there was insufficient evidence to dismiss the hostile environment claim on the basis of the affirmative defense:

First, a genuine issue of material fact exists as to whether the church failed to exercise reasonable care or failed to correct Pastor Ted's sexually harassing behavior. The church saw fi t, on three separate occasions, to meet with Pastor Ted and caution him about boundaries in his relationship with the plaintiff. Second, a genuine issue of material fact exists as to whether the plaintiff acted unreasonably in failing to take advantage of the preventative and corrective mechanisms provided by the church. Pastor Ted insinuated that the plaintiff's job was at risk if she reported the harassment. Also, plaintiff reported the behavior after only four months, while she attempted to avoid the harm by managing her complex relationship with Pastor Ted.

Sexual harassment (quid pro quo)

The court noted that to establish a claim for quid pro quo sexual harassment under Title VII, a plaintiff must show that the harassment resulted in an adverse tangible employment action. In other words, that a supervisor "explicitly or implicitly conditioned a job, a job benefit or the absence of a job detriment, upon an employee's acceptance of sexual conduct." In addition, the plaintiff must show that a tangible employment action actually resulted—that either that plaintiff refused to comply with the demand and was punished, or that plaintiff complied with the demand and avoided punishment. If an adverse tangible employment action is taken, liability attaches to the employer.

The court dismissed the plaintiff's quid pro quo sexual harassment claim since "the plaintiff neither participated in sexual activity to avoid punishment nor was she punished for refusing to participate in sexual activity."

Application. It is essential for any church having employees to adopt a sexual harassment policy, since this will serve as a defense to liability for a supervisor's acts of "hostile environment" sexual harassment to the extent that a victim of such harassment does not follow the policy. A written sexual harassment policy does not insulate a church from all sexual harassment liability. It will not serve as a defense in any of these situations: (1) a "tangible employment decision" has been taken against an employee; (2) incidents of quid pro quo sexual harassment; or (3) a victim of a supervisor's hostile environment sexual harassment pursues his or her remedies under the employer's sexual harassment policy.

A sexual harassment policy also will reduce the likelihood of such claims because a properly drafted policy will provide employees and employers with a definition of sexual harassment. Unfortunately, sexual harassment is more likely to flourish where employees and employers lack a clear understanding of what it means. By clearly defining the term in a policy, employees will be effectively warned against behaviors, however "innocent," that cross the line. And, employers will be better informed about behavior that is inappropriate. In summary, a properly drafted sexual harassment policy can be an effective tool in reducing the risk of sexual harassment, and the turmoil that often is associated with such claims. And, a sexual harassment policy may provide a church with a legal defense in the event of a sexual harassment claim. 2007 WL 3170999 (D. Or. 2007).

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

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