• Key point 10-02.3. Churches can be legally responsible on the basis of the respondeat superior doctrine for the actions of their employees only if those actions are committed within the course of employment and further the mission and functions of the church. Intentional and self-serving acts of church employees often will not satisfy this standard.
• 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 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.
• 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
* An Ohio court ruled that a church and denominational agency were not liable for a pastor’s sexual relationship with a female member of his congregation. A married couple began attending a church on a regular basis. At about the same time, the couple began experiencing marital problems. The wife (Terry) confided in the church’s senior pastor (Pastor Ron) about her marital problems, and Pastor Ron provided her with spiritual counseling to help with her problems. Terry and Pastor Ron had four such counseling sessions, which took place in his office at the church. The counseling relationship soon developed into a consensual sexual relationship, and Pastor Ron eventually resigned as senior pastor and told the congregation that he and his wife had been having marital problems and cited his forthcoming divorce as the reason for his resignation.
Church leaders later learned of Pastor Ron’s sexual relationship with Terry, and of two other adulterous affairs that Pastor Ron was having with other women in the church. This information prompted church leaders to call a denominational officer and apprise him of the situation. One of the actions taken by the denomination was to immediately discontinue Pastor Ron’s severance package. In addition, the denomination revoked his ordination and sent a letter to all licensed ministers associated with the denomination stating that he should not be permitted to conduct church services. The church’s congregation was also informed of the situation.
Terry later sued the church and a denominational agency (the “church defendants”), alleging that they had been negligent in their hiring, supervision, and retention of Pastor Ron because they knew or should have known that he would take sexual advantage of female members of the church. She also claimed that the church defendants were liable for Pastor Ron’s acts on the basis of respondeat superior. Terry claimed that as a result of Pastor Ron’s conduct, she suffered severe and debilitating emotional distress, embarrassment, mental anguish, stress, and loss of reputation. A trial court dismissed the lawsuit, and Terry appealed.
Respondeat superior
The court noted that “in order for an employer to be liable under the doctrine of respondeat superior, the act of the employee must be committed within the scope of employment.” Further, if the employee’s act is intentional, the act must be “calculated to facilitate or promote the business for which the employee was employed. Thus, an employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his business.”
The court concluded that it was “difficult to conceive of pastoral fornication with a parishioner or communicant as a legitimate religious belief or practice.” In other words, “intentional sexual activity is not related to a cleric’s duties, nor does it further church interests. Therefore, that conduct does not fall within the scope of a cleric’s employment.” The court concluded:
Moreover, the lone act of consensual sexual intercourse between plaintiff and Pastor Ron was planned in advance, did not occur on or near church premises, and did not arise out of a counseling session. It occurred when Pastor Ron called Terry on the telephone and invited her to his apartment, while also informing her that his wife was not home. Terry accepted Pastor Ron’s invitation and drove herself to a shopping mall where she met Pastor Ron in the parking lot and followed him in her own car back to his apartment. She knew when she accepted Pastor Ron’s invitation that a sexual encounter was on the horizon. Pastor Ron’s sexual relationship with Terry was clearly outside the scope of his employment. Thus, the church defendants cannot be liable to her under the theory of respondeat superior.
Negligent hiring and retention
The court noted that negligent hiring and retention requires (1) the existence of an employment relationship; (2) the employee’s incompetence; (3) the employer’s knowledge of such incompetence; (4) the employee’s act or omission causing the plaintiff’s injuries; and (5) the employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries.”
Terry claimed that the church defendants had prior knowledge of Pastor Ron’s sexual proclivities. She testified in her deposition that Pastor Ron told her that an associate pastor at the church had confronted him about a previous “sexual” and “inappropriate situation” with a woman, and so he and Terry had to “be careful.” The court rejected this evidence of proof that the church defendants had prior knowledge of Pastor Ron’s propensity to engage in sexual contact with church members, for two reasons. First, the associate pastor denied ever having had prior knowledge of improper sexual conduct on the part of Pastor Ron. Second, even if the associate pastor had such knowledge, “it cannot be imputed to the church defendants because there is no evidence to suggest that [the associate pastor] acquired that knowledge while acting within the scope of his employment. An employee’s knowledge is imputed to his employer only if the employee obtained the knowledge while acting within the scope of his employment.”
Negligent supervision
In rejecting Terry’s claim that the church defendants were guilty of negligent supervision, the court observed, “An underlying requirement in actions for negligent supervision and negligent training is that the employee is individually guilty of a claimed wrong against a third person, who then seeks recovery against the employer.” In this case, however, “it is undisputed that the lone sexual encounter between Pastor Ron and Terry was consensual. It is a fundamental principle of the common law that to one who is willing, no wrong is done …. This case involves conduct between two consenting adults. Terry testified in her deposition that Pastor Ron did not use force, drugs, or threats to coerce her into having sex with him. And although she alleges that Pastor Ron took sexual advantage of her, this allegation falls far short of alleging that she was incapable of consenting to what took place. Therefore, if Pastor Ron individually has no liability to Terry, it follows that the church defendants cannot be held liable for his conduct.” DePietro, 825 N.E.2d 630 (Ohio App. 2005).
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