Key point 10-07.02. Many courts have ruled that the First Amendment prevents churches from being legally responsible on the basis of negligent retention for the misconduct of ministers.

Some courts have concluded that the First Amendment prevents churches from being sued on the basis of negligent retention for the sexual misconduct of ministers.

Case studies

• A federal appeals court ruled that a school was not liable on the basis of negligent retention for the molestation of two young girls by a teacher despite the fact that it was aware of a prior, similar complaint by another girl because the school thoroughly investigated the prior complaint, concluded that it was unsubstantiated, and took appropriate steps to monitor and restrict the employee.[101] Davis v. DeKalb County School District, 233 F.3d 1367 (11th Cir. 2000). Accord Ehrens v. Lutheran Church, 385 F.3d 232 (2nd Cir. 2004).
• A Colorado court threw out a lawsuit brought by a woman alleging that her church acted improperly and unlawfully when it dismissed her after she made complaints of sexual harassment and child molestation against another minister.[102] Van Osdol v. Vogt, 892 P.2d 402 (Colo. App. 1994). The woman alleged that when she was a minor, her stepfather committed various acts of sexual assault against her when they resided together. Her stepfather was a minister at the time, and later became president of his denomination. The woman pursued ministerial studies and was licensed as a minister. After serving as a minister in the State of Washington, she moved to the Denver area to start a new church. She later learned that her stepfather, with whom she had severed all ties, was also pastoring a church in the Denver area. She learned that her stepfather was allegedly sexually harassing women church employees and a woman parishioner in his Denver church. She reported this alleged harassment, as well as the sexual abuse she had suffered from her stepfather as a minor, to denominational officers. In response, the stepfather filed charges with the denomination against the woman, claiming that her allegations were false and demanding a full investigation. After an investigation, denominational officers revoked the woman's license and denied her the opportunity to open a new church. The woman responded by filing a lawsuit against her stepfather and her denomination, alleging several theories of liability including negligent retention of her stepfather. In rejecting the woman's claim of negligent retention, the court noted that "[a]n employer may be subject to liability for negligent supervision and retention if the employer knows or should have known that an employee's conduct would subject third parties to an unreasonable risk of harm." The court concluded that any resolution of these theories of liability would involve the civil courts in a church's decision-making processes contrary to the First Amendment guaranty of religious freedom.