Court Decisions Rejecting Negligent Selection Claims
Key point 10-05.02. 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.
This section reviews court decisions in which a church or other religious organization was found not liable on the basis of negligent selection for inappropriate sexual contact with an adult by a minister or other church worker. Note that several courts have concluded that the First Amendment's "nonestablishment of religion" and "free exercise of religion" clauses prevent the civil courts from resolving negligent selection claims involving clergy misconduct.
Case Studies
- A Florida court ruled that it was barred by the First Amendment from resolving a woman's lawsuit claiming that she had been the victim of a priest's sexual misconduct.[86] Doe v. Evans, 718 So.2d 286 (Fla. App. 1998). The court concluded that the resolution of a negligent hiring, supervision, or retention claim against a church or diocese would amount to an excessive entanglement in violation of the First Amendment.
- A Kentucky court ruled that a church could not be liable for a pastor's sexual misconduct since there was "no evidence in the record that [he] had any history of sexual misconduct involving parishioners, or that the church had any knowledge that [he] might engage in such misconduct."[87] Payne v. Osborne, 1999 WL 354495 (Ky. App. 1999). Accord Olinger v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 521 F.Supp.2d 577 (E.D. Ky. 2007).
- A Maryland court ruled that a church and denominational agency were not liable on the basis of clergy malpractice for injuries sustained by a woman who was seduced by a pastor while working at a church camp. And, since the court refused to find the pastor legally responsible for the victim's injuries on the basis of malpractice, the church could not be liable on the basis of negligent hiring.[88] Borchers v. Hrychuk, 727 A.2d 388 (Md. App. 1999).
- A Minnesota court ruled that a church and denominational agency could not be liable on the basis of negligent hiring for the sexual misconduct of a pastor. The court concluded that a resolution of the negligent hiring claim against the church defendants would "entangle" church and state in violation of the First Amendment's nonestablishment of religion clause. It observed: "The church defendants argue that [the plaintiff's] hiring-related claims implicate core, fundamental church doctrines governing identification of individuals called to the ministry. We agree. A determination of whether the statutorily required inquiries were made of a pastor-candidate's former employers does not involve church doctrine, but a determination of how that information should be used in a hiring decision would force the court into an examination of church doctrine governing who is qualified to be a pastor. When claims involve core questions of church discipline and internal governance, the Supreme Court has acknowledged that the inevitable danger of governmental entanglement precludes judicial review."[89] J.M.v. Minnesota District Council, 658 N.W.2d 589 (Minn. App. 2003).
- A federal court in New York refused to find a church or denominational agency liable on the basis of "negligent placement, retention, or supervision" for a pastor's sexual contacts with a woman during marital counseling.[90] Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y. 1991). The court made the following statement in rejecting the woman's claim that the church and denomination had been guilty of negligence: "[A]ny inquiry into the policies and practices of the church defendants in hiring or supervising their clergy raises amp;hellip; First Amendment problems of entanglement … which might involve the court in making sensitive judgments about the propriety of the church defendants' supervision in light of their religious beliefs."
- The Ohio Supreme Court ruled that state and national denominational offices could not be sued on the basis of negligent hiring as a result of the sexual misconduct of clergy.[91] Byrd v. Faber, 565 N.E.2d 584 (Ohio 1991). Accord Doe v. Turner, 1994 WL 369956 (Ohio App. 1994), Mirick v. McClellan, 1994 WL 156303 (Ohio App. 1994); Gebhart v. College of Mount St. Joseph, 665 N.E.2d 223 (Ohio App. 1995). A woman who had engaged in a sexual relationship with her pastor in the course of marital counseling sued the denominational offices, claiming that they were responsible for her injuries on the basis of negligent hiring. The lawsuit alleged that the state and national denominational offices "knew, or should have known of the inclination of [the pastor] to commit such actions and were reckless or negligent in allowing said [pastor] to assume the position of pastor. …" The court acknowledged that "if a church hires an individual despite knowledge of prior improper behavior in his former church-related employment, the church may be liable in tort for negligent hiring." However, the court insisted that a lawsuit that merely alleges that a religious organization is guilty of "negligent hiring," but that recites no facts supporting such an allegation, must be dismissed. Since the woman's lawsuit contained no reference whatsoever to any facts to support a claim of negligent hiring, it had to be dismissed. The court observed, "We hold today that … greater specificity in pleading is required when a claim is brought against a religious institution for negligent hiring due to the myriad of First Amendment problems which accompany such a claim. In order to survive a … motion to dismiss, a plaintiff bringing a negligent hiring claim against a religious institution must plead facts with particularity. Specifically, the plaintiff must plead facts which indicate that the individual hired had a past history of criminal conduct, tortious, or otherwise dangerous conduct about which the religious institution knew or could have discovered through reasonable investigation. The mere incantation of the elements of a negligent hiring claim, i.e., the abstract statement that the religious institution knew or should have known about the employee's criminal or tortious propensities, without more, is not enough to enable a plaintiff to survive a motion to dismiss for failure to state a claim [upon which relief can be granted]. … While even the most liberal construction of the First Amendment will not protect a religious organization's decision to hire someone who it knows is likely to commit criminal or tortious acts, the mere incantation of an abstract legal standard should not subject a religious organization's employment policies to state scrutiny. Consequently, in order to survive a motion to dismiss, a plaintiff bringing a negligent hiring claim must allege some fact indicating that the religious institution knew or should have known of the employee's criminal or tortious propensities." The court ruled that the woman's lawsuit had to be dismissed, since it "alleged no fact indicating that [the pastor] had a past history of criminal or tortious conduct about which the [denominational offices] knew or should have known."
- The Oklahoma Supreme Court ruled that a married couple could not sue their church and former pastor for damages they allegedly incurred as a result of an adulterous affair between the former pastor and the wife.[92] Bladen v. First Presbyterian Church, 857 P.2d 789 (Okla. 1993). The husband and wife sued the church and former pastor as a result of the pastor's conduct. The lawsuit alleged that the church was negligent in the selection of the pastor since it knew or should have known about the wife's affair and a previous affair in Texas. The church insisted that it did not know of the affair or of the alleged incident in Texas, and that it did not condone such behavior. The court concluded that the church was not responsible for injuries resulting from the minister's conduct. It observed that the First Amendment guaranty of religious freedom did not shield churches from liability for personal injuries arising "from acts unrelated to religious practices protected by the First Amendment." However, it insisted that all of the couple's claims against the church had to be dismissed. It observed, "Neither the claims by the husband nor the wife against the minister are cognizable in Oklahoma. … Because their claims against the minister also serve as the basis for the claims against the church for its negligent hiring and supervision of the minister, that claim is also not cognizable."
- A Texas court summarily dismissed a lawsuit alleging that a church was responsible on the basis of negligence for its pastor's sexual relationship with a counselee. The victim claimed that the church was negligent in hiring, training and supervising the pastor. The court observed: "As a general rule, courts will not attempt to right wrongs related to the hiring, firing, discipline, or administration of clergy. The training and supervision of clergy are part of the administration of clergy. To recover for negligent hiring, retention, or administration in a case such as this, a plaintiff must show that the church employed an incompetent servant and that the church knew, or by the exercise of reasonable care should have known, that the minister was incompetent or unfit. It must be shown that the church knew or should have known that the minister's conduct as a counselor presented an unreasonable risk of harm to others. In the present case, [the church] established as a matter of law that it exercised reasonable care and yet did not know of any incompetence or sexual misconduct by [the pastor] either before his hiring or during his employment, until the church was notified [of the affair with the woman]. When the church was notified, it terminated him as pastor the very next day. … [T]here was no evidence that [the church] should have known that [the pastor] was likely to engage in misconduct during counseling. In light of the uncontroverted evidence of [the church's] diligence and lack of notice, the trial court properly [dismissed the case]."[93] Hodges v. Kleinwood Church of Christ, 2000 WL 994337 (Tex. App. 2000).
Table of Contents
-
1Definitions and Status
-
§ 1.01Distinctions Between the Terms Pastor, Clergy, Minister
-
§ 1.02Definition of the Terms Pastor, Clergy, Minister — In General
-
§ 1.03Status—Employee or Self Employed
-
§ 1.03.01Social Security
-
§ 1.03.02Income Taxes
-
§ 1.03.03Retirement Plans
-
§ 1.03.04Legal Liability
-
§ 1.03.05Miscellaneous Federal and State Statutes
-
-
§ 1.04Status—Ordained, Commissioned, or Licensed
2The Pastor-Church Relationship
-
§ 2.01Initiating the Relationship—In General
-
§ 2.01.01Congregational Churches
-
§ 2.01.02Hierarchical Churches
-
§ 2.01.03Compliance with a Church's Governing Instrument in the Selection of a Minister
-
§ 2.01.04Civil Court Review of Clergy Selection Disputes—the General Rule of Non-Intervention
-
§ 2.01.05Civil Court Review of Clergy Selection Disputes—Limited Exceptions to the General Rule
-
§ 2.01.06Negligent Selection
-
-
§ 2.02The Contract
-
§ 2.03Compensation
-
§ 2.04Termination
3Authority, Rights, and Privileges
-
§ 3.01General Scope of a Minister's Authority
-
§ 3.02Officer of the Church Corporation
-
§ 3.03Property Matters
-
§ 3.04Performance of Marriage Ceremonies
-
§ 3.05Exemption from Military Duty
-
§ 3.06Exemption From Jury Duty
-
§ 3.07The Clergy-Penitent Privilege—In General
-
§ 3.07.01A "Communication"
-
§ 3.07.02Made in Confidence
-
§ 3.07.03To a Minister
-
§ 3.07.04Acting in a Professional Capacity as a Spiritual Adviser
-
§ 3.07.05In the Course of Discipline
-
-
§ 3.08The Clergy-Penitent Privilege—Miscellaneous Issues
-
§ 3.08.01Clergy-Parishioner Relationship
-
§ 3.08.02Marriage Counseling
-
§ 3.08.03Who May Assert the Privilege
-
§ 3.08.04When to Assert the Privilege
-
§ 3.08.05Waiver of the Privilege
-
§ 3.08.06The Privilege in Federal Courts
-
§ 3.08.07Constitutionality of the Privilege
-
§ 3.08.08Child Abuse Reporting
-
§ 3.08.09Confidentiality
-
§ 3.08.10Disclosure to Civil Authorities
-
§ 3.08.11Church Records
-
§ 3.08.12Death of the Counselee
-
-
§ 3.09Visiting Privileges at Penal Institutions
-
§ 3.10Immigration of Alien Ministers, Religious Vocations, and Religious Occupations
-
§ 3.11Miscellaneous Benefits
4Liabilities, Limitations, and Restrictions
-
§ 4.01Negligence
-
§ 4.02Defamation—In General
-
§ 4.02.01Pastors Who Are Sued for Making Defamatory Statements
-
§ 4.02.02Pastors Who Are Victims of Defamation
-
§ 4.02.03Defenses
-
-
§ 4.03Undue Influence
-
§ 4.04Invasion of Privacy
-
§ 4.05Clergy Malpractice
-
§ 4.06Contract Liability
-
§ 4.07Securities Law Violations
-
§ 4.08Failure to Report Child Abuse
-
§ 4.09Diversion of Church Funds
-
§ 4.10State Regulation of Psychologists and Counselors
-
§ 4.11Sexual Misconduct
-
§ 4.11.01Theories of Liability
-
§ 4.11.02Defenses to Liability
-
5Definitions
-
§ 5.01Tax Legislation—Federal
-
§ 5.01.01Churches
-
§ 5.01.02Mail Order Churches
-
§ 5.01.03Other Religious Organizations
-
§ 5.01.04Tax Legislation—State
-
-
§ 5.02Zoning Law
-
§ 5.02.01Churches
-
§ 5.02.02Accessory Uses
-
6Organization and Administration
-
§ 6.01Unincorporated Associations
-
§ 6.01.01Characteristics
-
§ 6.01.02Personal Liability of Members
-
§ 6.01.03Creation and Administration
-
-
§ 6.02Corporations
-
§ 6.02.01The Incorporation Process
-
§ 6.02.02Charters, Constitutions, Bylaws, and Resolutions
-
-
§ 6.03Church Records
-
§ 6.03.01Inspection
-
§ 6.03.02“Accountings” of Church Funds
-
§ 6.03.03Public Inspection of Tax-Exemption Applications
-
§ 6.03.04Government Inspection of Donor and Membership Lists
-
§ 6.03.05The Church Audit Procedures Act
-
§ 6.03.06Who Owns a Church’s Accounting Records?
-
-
§ 6.04Reporting Requirements
-
§ 6.04.01State Law
-
§ 6.04.02Federal Law
-
-
§ 6.05Church Names
-
§ 6.06Officers, Directors, and Trustees—In General
-
§ 6.06.01Election or Appointment
-
§ 6.06.02Authority
-
§ 6.06.03Meetings
-
§ 6.06.04Removal
-
-
§ 6.07Officers, Directors, and Trustees—Personal Liability
-
§ 6.07.01Tort Liability
-
§ 6.07.02Contract Liability
-
§ 6.07.03Breach of the Fiduciary Duty of Care
-
§ 6.07.04Breach of the Fiduciary Duty of Loyalty
-
§ 6.07.05Violation of Trust Terms
-
§ 6.07.06Securities Law
-
§ 6.07.07Wrongful Discharge of an Employee
-
§ 6.07.08Willful Failure to Withhold Taxes
-
§ 6.07.09Exceeding the Authority of the Board
-
§ 6.07.10Loans to Directors
-
-
§ 6.08Immunity Statutes
-
§ 6.08.01Directors and Officers Insurance
-
-
§ 6.09Members—In General
-
§ 6.09.01Selection and Qualifications
-
§ 6.09.02Authority
-
-
§ 6.10Members—Discipline and Dismissal
-
§ 6.10.01Judicial Nonintervention
-
§ 6.10.02“Marginal” Civil Court Review
-
§ 6.10.03Preconditions to Civil Court Review
-
§ 6.10.04Remedies for Improper Discipline or Dismissal
-
-
§ 6.11Members—Personal Liability
-
§ 6.12Meetings of Members
-
§ 6.12.01Procedural Requirements
-
§ 6.12.02Minutes
-
§ 6.12.03Parliamentary Procedure
-
§ 6.12.04Effect of Procedural Irregularities
-
§ 6.12.05Judicial Supervision of Church Elections
-
§ 6.12.06Who May Attend
-
-
§ 6.13Powers of a Local Church
-
§ 6.14Merger and Consolidation
-
§ 6.15Dissolution
7Church Property
-
§ 7.01Church Property Disputes—In General
-
§ 7.02Church Property Disputes—Supreme Court Rulings
-
§ 7.03State and Lower Federal Court Rulings
-
§ 7.04Church Property Disputes—Dispute Resolution Procedures
-
§ 7.05Transferring Church Property
-
§ 7.06Zoning Law
-
§ 7.07Restricting Certain Activities Near Church Property
-
§ 7.08Building Codes
-
§ 7.08.01Lead Paint on Church Property
-
-
§ 7.09Nuisance
-
§ 7.10Landmarking
-
§ 7.11Eminent Domain
-
§ 7.12Defacing Church Property
-
§ 7.13Restrictive Covenants
-
§ 7.14Reversion of Church Property to the Prior Owner
-
§ 7.15Materialmen’s Liens
-
§ 7.16Religious Discrimination in the Sale or Rental of Church Property
-
§ 7.17Removing Disruptive Individuals
-
§ 7.18Adverse Possession
-
§ 7.19Accounting for Depreciation
-
§ 7.20Premises Liability
-
§ 7.20.01Liability Based on Status as Invitee, Licensee, or Trespasser
-
§ 7.20.02Defenses to Premises Liability
-
§ 7.20.03Use of Church Property by Outside Groups
-
§ 7.20.04Assaults on Church Property
-
§ 7.20.05Skate Ramps
-
§ 7.20.06Sound Rooms
-
-
§ 7.21Embezzlement
-
§ 7.22Places of Public Accommodation
8Employment Law
-
§ 8.01Introduction: Selection of Employees
-
§ 8.02New Hire Reporting
-
§ 8.03Employment Eligibility Verification
-
§ 8.04Immigration
-
§ 8.05Negligent Selection
-
§ 8.06Introduction: Compensation and Benefits
-
§ 8.07Workers Compensation
-
§ 8.08Fair Labor Standards Act
-
§ 8.08.01Enterprises
-
§ 8.08.02Individual Coverage
-
§ 8.08.03Federal Court Rulings
-
§ 8.08.04Department of Labor Opinion Letters
-
§ 8.08.05Exemptions
-
§ 8.08.06Ministers
-
§ 8.08.07State Laws
-
§ 8.08.08Case Studies
-
-
§ 8.09Introduction to Federal Employment and Civil Rights Laws—The “Commerce” Requirement
-
§ 8.09.01Counting Employees
-
-
§ 8.10The “Ministerial Exception” under State and Federal Employment Laws
-
§ 8.11Procedure for Establishing a Discrimination Claim
-
§ 8.12Title VII of the Civil Rights Act of 1964
-
§ 8.12.01Application to Religious Organizations
-
§ 8.12.02Application to Religious Educational Institutions
-
§ 8.12.03Religion as a "Bona Fide Occupational Qualification"
-
§ 8.12.04Discrimination Based on Religion or Morals
-
§ 8.12.05Sexual Harassment
-
§ 8.12.06The Catholic Bishop Case
-
§ 8.12.07Failure to Accommodate Employees’ Religious Practices
-
§ 8.12.08The Religious Freedom Restoration Act
-
§ 8.12.09The Civil Rights Act of 1991
-
-
§ 8.13The Age Discrimination in Employment Act
-
§ 8.14The Americans with Disabilities Act
-
§ 8.14.01Discrimination in Employment
-
§ 8.14.02Discrimination in Public Accommodations
-
-
§ 8.15Family and Medical Leave Act
-
§ 8.16Employer “Retaliation” Against Victims of Discrimination
-
§ 8.17Discrimination Based on Military Status
-
§ 8.18Employee Polygraph Protection Act
-
§ 8.19Occupational Safety and Health Act
-
§ 8.20Display of Posters
-
§ 8.21Discrimination under State Laws
-
§ 8.22Termination of Employees
-
§ 8.22.01Severance Agreements
-
-
§ 8.23National Labor Relations Act
-
§ 8.24Reference Letters
-
§ 8.25Employee Evaluations
-
§ 8.26Employment Interviews
-
§ 8.27Arbitration
-
§ 8.28Employee Handbooks
-
§ 8.29Employee Privacy
-
§ 8.30Insurance
9Government Regulation of Churches
-
§ 9.01Introduction
-
§ 9.02Regulation of Charitable Solicitations
-
§ 9.03Limitations on Charitable Giving
-
§ 9.04Federal and State Securities Law
-
§ 9.05Copyright Law
-
§ 9.05.01Copyright Ownership
-
§ 9.05.02Works Made for Hire
-
§ 9.05.03Exclusive Rights
-
§ 9.05.04Infringement
-
§ 9.05.05The "Religious Service" Exemption to Copyright Infringement
-
§ 9.05.06Electronic Media
-
§ 9.05.10Other Exceptions to Copyright Infringement
-
-
§ 9.06Government Investigations
-
§ 9.07Judicial Resolution of Church Disputes
-
§ 9.08Political Activities by Churches and Other Religious Organizations
-
§ 9.09Bankruptcy Law
10Church Legal Liability
-
§ 10.01Negligence as a Basis for Liability—In General
-
§ 10.02Vicarious Liability (Respondeat Superior)
-
§ 10.02.01The Requirement of Employee Status
-
§ 10.02.02Negligent Conduct
-
§ 10.02.03Course of Employment
-
§ 10.02.04Inapplicability to Nonprofit Organizations
-
-
§ 10.03Negligent Selection of Church Workers—In General
-
§ 10.04Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Minor Victims
-
§ 10.05Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Adult Victims
-
§ 10.05.01Court Decisions Recognizing Negligent Selection Claims
-
§ 10.05.02Court Decisions Rejecting Negligent Selection Claims
-
§ 10.05.03Risk Management
-
-
§ 10.06Negligent Selection of Church Workers—Other Cases
-
§ 10.07Negligent Retention of Church Workers—In General
-
§ 10.07.01Court Decisions Recognizing Negligent Retention Claims
-
§ 10.07.02Court Decisions Rejecting Negligent Retention Claims
-
§ 10.07.03Risk Management
-
-
§ 10.08Negligent Supervision of Church Workers—In General
-
§ 10.09Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Minor Victims
-
§ 10.09.01Court Decisions Recognizing Negligent Supervision Claims
-
§ 10.09.02Court Decisions Rejecting Negligent Supervision Claims
-
§ 10.09.03Risk Management
-
-
§ 10.10Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Adult Victims
-
§ 10.10.01Court Decisions Recognizing Negligent Supervision Claims
-
§ 10.10.02Court Decisions Rejecting Negligent Supervision Claims
-
§ 10.10.03Risk Management
-
-
§ 10.11Negligent Supervision of Church Workers—Other Cases
-
§ 10.11.01Risk Management
-
-
§ 10.12Counseling—In General
-
§ 10.12.01Risk Management
-
-
§ 10.13Breach of a Fiduciary Duty
-
§ 10.13.01Court Decisions Recognizing Fiduciary Duty Claims
-
§ 10.13.02Court Decisions Rejecting Fiduciary Duty Claims
-
§ 10.13.03Risk Management
-
-
§ 10.14Ratification
-
§ 10.15Defamation
-
§ 10.16Defenses to Liability
-
§ 10.16.01Contributory and Comparative Negligence
-
§ 10.16.02Assumption of Risk
-
§ 10.16.03Intervening Cause
-
§ 10.16.04Statutes of Limitations
-
§ 10.16.05Charitable Immunity
-
§ 10.16.06Release Forms
-
§ 10.16.07Insurance
-
§ 10.16.08Other Defenses
-
-
§ 10.17Damages—In General
-
§ 10.17.01Punitive Damages
-
§ 10.17.02Duplicate Verdicts
-
-
§ 10.18Denominational Liability—In General
-
§ 10.18.01Court Decisions Recognizing Vicarious Liability
-
§ 10.18.02Court Decisions Rejecting Vicarious Liability
-
§ 10.18.03Defenses to Liability
-
§ 10.18.04Risk Management
-
§ 10.18.05The Legal Effect of a Group Exemption Ruling
-
-
§ 10.19Risks Associated with Cell Phones
-
§ 10.20Risks Associated with the Use of 15-Passenger Vans
12The Present Meaning of the First Amendment Religion Clauses
-
§ 12.01The Establishment Clause
-
§ 12.01.01The Lemon Test
-
-
§ 12.02The Free Exercise Clause
-
§ 12.02.01The Smith Case
-
§ 12.02.02The Religious Freedom Restoration Act
-
§ 12.02.03The City of Boerne Case
-
§ 12.02.04Conclusions
-
13Significant First Amendment Issues
-
§ 13.01The Right to Witness
-
§ 13.02Prayer on Public Property other than Schools
-
§ 13.03Prayer During Public School Activities
-
§ 13.04Display of Religious Symbols on Public Property
-
§ 13.05Recurring Use of Public Property by Religious Congregations for Religious Services
-
§ 13.06Nonrecurring Use of Public Property by Adults for Religious Events and Activities
-
§ 13.07Use of Public School Property by Students for Religious Purposes
-
§ 13.08Sunday Closing Laws
-
§ 13.09The Right to Refuse Medical Treatment
-
§ 13.10Definition of "Religion" and "Religious"
This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.
-