Our lesson this week examines the topic of sexual harassment. The Executive Summary provides a concise review of the key points. Before we get started, test your knowledge by completing the following quiz.
A denominational agency has 25 employees and is engaged in interstate commerce. One of its male supervisory employees uses sexually suggestive language with a female subordinate over several weeks. The employee complains to a denominational officer. The denomination has no sexual harassment policy, and the officer decides to do nothing about the complaint.
Instructions Click on the correct answer for each of the following questions.
Sexual harassment in employment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. Generally, denominational agencies engaged in interstate commerce and having at least 15 employees are subject to Title VII, and so the ban on sexual harassment in employment applies to them. Sexual harassment consists of both "quid pro quo" harassment and "hostile environment" harassment. 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.
Sexual harassment is a form of "sex discrimination" prohibited by Title VII of the Civil Rights Act of 1964. As we have seen in previous lessons, Title VII applies to any employer (including religious organizations) that are engaged in interstate commerce and that have at least 15 employees. Equal Employment Opportunity Commission (EEOC) regulations define the term sexual harassment as follows:
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 definition confirms the conclusion reached by numerous state and federal courts that sexual harassment includes at least two separate types of conduct:
- "quid pro quo" harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship, and
- "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.
Key point. A woman's "consent" is not a defense to an allegation of sexual harassment. The United States Supreme Court has observed: "The fact that sex-related conduct was voluntary in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit … . The [basis] of any sexual harassment claim is that the alleged sexual advances were unwelcome … . The correct inquiry is whether [the victim] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary."
When is an employer liable for sexual harassment? Consider the following six rules:
Rule #1 - quid pro quo harassment
If a supervisor conditions employment opportunities on an employee's submission to a sexual or social relationship, and the employee's "compensation, terms, conditions or privileges of employment" are adversely affected because of a refusal to submit, this constitutes quid pro quo sexual harassment for which the employer will be legally responsible. This is true whether or not the employer was aware of the harassment.
Rule #2 - harassment committed by nonsupervisory employees
EEOC regulations address employer liability for the sexual harassment of nonsupervisory employees as follows:
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.
Rule #3 - harassment committed by non-employees
EEOC regulations address employer liability for the sexual harassment of non-employees as follows:
An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.
Rule #4 - hostile environment harassment by a supervisor, with a tangible employment decision
If a supervisor creates an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature, this is "hostile environment" sexual harassment for which the employer will be legally responsible if the supervisor takes any "tangible employment action" against the employee. A tangible employment action includes "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." The employer is liable under such circumstances whether or not it was aware of the harassment.
Rule #5 - hostile environment harassment by a supervisor, with no tangible employment decision
If a supervisor creates an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature, this is "hostile environment" sexual harassment for which the employer will be legally responsible even if the supervisor takes no "tangible employment action" against the employee.
Rule #6 - the employer's "affirmative defense" to liability for a supervisor's hostile environment sexual harassment not accompanied by a tangible employment decision
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:
- 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.
- 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.
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.
Key point. 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.
What terms should be included in a sexual harassment policy? Unfortunately, the Supreme Court has not addressed this question directly. However, other courts have. Here is a list of some of the terms that should be incorporated into a written sexual harassment policy:
- Define sexual harassment (both quid pro quo and hostile environment) and state unequivocally that it will not be tolerated and that it will be the basis for immediate discipline (up to and including dismissal).
- Contain a procedure for filing complaints of harassment with the employer.
- Encourage victims to report incidents of harassment.
- Assure employees that complaints will be investigated promptly.
- Assure employees that they will not suffer retaliation for filing a complaint.
- Discuss the discipline applicable to persons who violate the policy.
- Assure the confidentiality of all complaints.
In addition to implementing a written sexual harassment policy, a church should also take the following steps:
- Communicate the written policy to all workers.
- Investigate all complaints immediately. Some courts have commented on the reluctance expressed by some male supervisors in investigating claims of sexual harassment. To illustrate, a federal appeals court observed: "Because women are disproportionately the victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive."
- Discipline employees who are found guilty of harassment. However, be careful not to administer discipline without adequate proof of harassment. Discipline not involving dismissal should be accompanied by a warning that any future incidents of harassment will not be tolerated and may result in immediate dismissal.
- Follow up by periodically asking the victim if there have been any further incidents of harassment.
Key point. Most states have enacted their own civil rights laws that bar sexual harassment in employment, and it is far more likely that these laws will apply to churches since there is no "commerce" requirement and often fewer than 15 employees are needed to be covered by the law.