• 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 10-10.2. 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.
Negligence as a Basis for Liability

• Key point 10-12. Churches face a number of legal risks when they offer counseling services by ministers or laypersons. These include negligent selection, retention, or supervision of a counselor who engages in sexual misconduct or negligent counseling. A church also may be vicariously liable for a counselor’s failure to report child abuse, breach of confidentiality, and breach of a fiduciary relationship.
Seduction of Counselees and Church Members

* A Georgia court ruled that a church and denominational agency were not responsible for damages caused by a pastor’s sexual relationship with a female member of his congregation. A regional church appointed Pastor Warren as pastor of an affiliated church. A church member (Gary) alleged that he went to Pastor Warren for counseling regarding his marriage. Gary confided in Pastor Warren, revealing personal information such as his belief that his wife was having an affair, her apparent attempts to cover up the affair, and his wife’s previous affair and its effect on their marriage. While counseling Gary about his marriage, Pastor Warren was having a sexual relationship with Gary’s wife and concealed the relationship from Gary. A short time later, Gary discovered his wife was having an affair with Pastor Warren, and he immediately brought the affair to the attention of church officials, and sent a letter of complaint to the regional church. Pastor Warren resigned shortly thereafter.

Gary sued Pastor Warren for breach of a confidential relationship. He also sued the church and regional church for negligent hiring, negligent retention, and negligent supervision. A trial court dismissed the lawsuit, and Gary appealed.

A state appeals court began its opinion by observing:

An employer may be liable for hiring or retaining an employee the employer knows or in the course of ordinary care should have known was not suited for the particular employment. When an incompetent employee is hired for a particular position, it is reasonably foreseeable that such employee may injure others in the negligent performance of the duties of that position and accordingly an employer may be held liable for injuries caused by the negligent performance of the incompetent employee where evidence shows the employer knew or should have discovered that incompetency. However … an employer may be held liable only where there is sufficient evidence to establish that the employer reasonably knew or should have known of an employee’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff.

The court then addressed each of Gary’s theories of liability.

Negligent hiring

In rejecting Gary’s claim that the church and regional church were responsible for Pastor Warren’s misconduct on the basis of negligent hiring, the court observed:

With regard to Gary’s claim of negligent hiring, evidence shows Pastor Warren was interviewed by the District Committee of Ordained Ministry and then by the Conference Board of Ordained Ministry, and Gary does not show that during this process either body was informed of misconduct by Pastor Warren during his previous employment. As a prospective minister, Pastor Warren was also required to undergo a psychological evaluation. A psychologist with [a University] School of Medicine evaluated Pastor Warren. The doctor’s report did not show Pastor Warren was unfit to serve as a pastor and was generally positive. Gary points to nothing in the record showing that during the hiring process either [the local church or regional church] became aware of anything in Pastor Warren’s background indicating he was unsuited for employment as a minister or which put them on notice that further investigation was warranted.

Gary contends that if church officials had interviewed some of Pastor Warren’s former employers they would have discovered information indicating that he was not adequately trained as a counselor and had misused his position to take advantage of parishioners and counseled persons. Gary submitted affidavits from two of Pastor Warren’s former employers. The affidavit of one pastor disclosed that, while employed as a youth and music minister, Pastor Warren allegedly sexually assaulted a young man. Pastor Warren, who was married at the time, also reportedly tried to date a “young lady at the church.” The pastor of a second church where Pastor Warren had been employed as the minister of music, stated that a young parishioner accused Pastor Warren of touching her on the breast. The pastor also claimed that after the personnel committee declined to increase the compensation of the church pianist, Pastor Warren increased the pay of the church pianist out of his budget and in violation of church policy.

The court acknowledged that “a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants failed to exercise ordinary care in hiring suitable employees.” But, it concluded that even if the local church and regional church had performed a background check which included interviews of Pastor Warren’s former employers, “the evidence does not show Pastor Warren’s background information would have placed [the local church or regional church] on notice that it was reasonably foreseeable from [Pastor Warren’s] tendencies or propensities that he could cause the type of harm sustained by Gary, which arose from Pastor Warren’s alleged betrayal of his counseling relationship with him. Accordingly, we conclude that [the church defendants] have demonstrated that no genuine issue of fact remains as to Gary’s negligent hiring claim.”

Negligent supervision

In rejecting Gary’s negligent supervision claim, the court pointed out that (1) Pastor Warren was formally evaluated by his senior pastor on an annual basis; (2) a parish committee evaluated him annually; and (3) he was required to complete a yearly self-evaluation which was submitted to the senior pastor who conducted a personal interview. According to the senior pastor, Pastor Warren received “high marks” on objective and subjective criteria, and the evaluation process raised no “negative issues.”

Negligent retention

Gary claimed that the local church and regional church were responsible for Pastor Warren’s misconduct on the basis of negligent retention. That is, they failed to discipline or dismiss Pastor Warren after learning of prior allegations suggesting that he might engage in acts of sexual misconduct with members of the congregation. In support of this theory of liability, Gary presented the affidavit of a church member who stated that Pastor Warren gave her hugs that were “inappropriately long in duration.” Gary also submitted the affidavit of the church’s youth minister who stated that he observed an inappropriate relationship between Gary’s wife and Pastor Warren months before the affair was revealed.

However, the court stressed that neither affidavit demonstrated that Pastor Warren’s allegedly inappropriate actions were brought to the attention of church leaders, “nor do they involve conduct showing that Pastor Warren had a tendency to engage in the type of conduct which Gary claims caused his injury.”

Application. This case provides an excellent review of three common theories of church liability-negligent hiring, negligent supervision, and negligent retention. Here are the key conclusions of the court:

1. The local church and regional church were not liable on the basis of negligent hiring because (1) two regional church committees interviewed Pastor Warren prior to his ordination; (2) Pastor Warren was required to undergo a psychological evaluation prior to his ordination, and the evaluation was positive; and (3) during the hiring process, neither the local church nor regional church became aware of anything in Pastor Warren’s background indicating he was unsuited for employment as a minister or which put them on notice that further investigation was warranted.

The court rejected Gary’s claim that the church was guilty of negligent hiring because it could have learned of Pastor Warren’s propensity to engage in sexual relations with a married woman during a counseling relationship had it contacted the two churches where he previously had worked. The court acknowledged that affidavits from the pastors of those churches recounted a range of inappropriate behaviors including sexual assault of a male employee, an attempt to “date” a young woman (though he was married at the time), and touching the breast of another female church member. However, the court concluded that even if the local church and regional church had been made aware of these allegations, “the evidence does not show Pastor Warren’s background information would have placed [the local church or regional church] on notice that it was reasonably foreseeable from his tendencies or propensities that he could cause the type of harm sustained by Gary, which arose from Pastor Warren’s alleged betrayal of his counseling relationship with him.” No doubt some courts would disagree with this conclusion, but it demonstrates the important principle that a failure to conduct a background check may not be evidence of negligent hiring unless such a check would have disclosed prior acts of misconduct of the same kind later committed by an employee.

2. In rejecting the allegation of negligent supervision, the court noted that Pastor Warren was formally evaluated by his senior pastor and a parish committee on an annual basis, and was required to complete a yearly self-evaluation which was submitted to the senior pastor.

3. The court also concluded that the church defendants were not guilty of negligent retention. It acknowledged that a church member claimed that Pastor Warren had given her hugs of “inappropriately long duration,” and the church’s youth pastor stated that he had observed an inappropriate relationship between Gary’s wife and Pastor Warren months before the affair was revealed. However, the court concluded that neither allegation supported a claim of negligent retention against the church defendants since neither allegation was ever brought to the attention of church leaders, or involved conduct showing that Pastor Warren had a tendency to engage in sexual contact with female counselees. Poole, 615 S.E.2d 604 (Ga. App. 2005).

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