Pastor, Church & Law

§ 8.12.05

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Key Point 8-12.05. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both "quid pro quo" harassment and "hostile environment" harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees' acts of harassment, but a defense is available to claims of hostile environment harassment if the employer 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. Equal Employment Opportunity Commission (EEOC) regulations define sexual harassment as follows:

(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. 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:

(1) "quid pro quo" harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship, and

(2) "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 gravamen 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." In other words, a female employee may engage in voluntary sexual contact with a supervisor because of her belief that her job (or advancement) depends on it. While such contact would be voluntary, it is not necessarily welcome. Sexual harassment addresses unwelcome sexual contact, whether or not that contact is voluntary.

Key Point. The United States Supreme Court has observed: "A sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile and abusive, and one that the victim in fact did perceive to be so. … Simple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." [100] Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

When is an employer liable for sexual harassment? Consider the following 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.[101] Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998); Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998).

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.[102] Id.

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:

(i) 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.

(ii) 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.[103] Id.

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. EEOC guidelines contain the following language: "Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned."

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.

Tip. The assistance of an attorney is vital in the drafting of a sexual harassment policy.

Tip. Church insurance policies generally do not cover employment-related claims, including sexual harassment. If your church is sued for sexual harassment, you probably will need to retain and pay for your own attorney, and pay any judgment or settlement amount. This often comes as a shock to church leaders. You should immediately review your policy with your insurance agent to see if you have any coverage for such claims. If you do not, ask how it can be obtained. You may be able to obtain an endorsement for "employment practices." Also, a "directors and officers" policy may cover these claims.

The following case studies will illustrate the application of Title VII's ban on sexual harassment to religious organizations.

Case Studies

• A church has four employees. A female employee believes that she has been subjected to sexual harassment, and threatens to contact the EEOC. Sexual harassment is a form of sex discrimination that is prohibited in employment by Title VII of the Civil Rights Act of 1964. This law applies only to those employers having at least 15 employees and that are engaged in commerce. Since the church in this example has fewer than 15 employees, it is not subject to Title VII, and therefore the EEOC (which has jurisdiction over Title VII claims) will not be able to process the employee's complaint.
• Assume that a church is covered by Title VII. A female bookkeeper claims that a male custodian has been sexually harassing her by creating a "hostile environment." She does not discuss the custodian's behavior with the senior pastor or church board. She later threatens to file a complaint with the EEOC, charging the church with responsibility for the custodian's behavior. Since the harassment was not committed by a supervisor having the authority to affect the bookkeeper's terms and conditions of employment, EEOC guidelines addressing employer liability for sexual harassment specify: "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." If the pastor and church board were not aware of the custodian's offensive behavior, then according to this regulation the church will not be legally responsible for it.
• Same facts as the previous case study, except that the bookkeeper complained on two occasions to the senior pastor about the custodian's behavior. The pastor delayed acting because he did not believe the matter was serious. According to the EEOC regulations quoted in the previous case study, it is likely that the church is liable for the custodian's behavior since the pastor was aware of the offensive behavior but failed to take "immediate and appropriate corrective action."
• Same facts as the previous case study, except that the pastor immediately informed the church board. The board conducted an investigation, determined the charges to be true on the basis of the testimony of other employees, and warned the custodian that one more complaint of harassing behavior would result in his dismissal. This action was based on the bookkeeper's own recommendation. It is doubtful that the church will be liable for sexual harassment under these circumstances, since it took "immediate and appropriate corrective action."
• A church is subject to Title VII. A male supervisory employee informs a female employee that her continuing employment depends on engaging in sexual relations with him. This is an example of quid pro quo sexual harassment. The church is liable for such harassment by a supervisor whether or not it was aware of it. The fact that it had a written sexual harassment policy that prohibited such behavior will not relieve it from liability.
• A church is subject to Title VII. A male employee (with no supervisory authority) repeatedly asks another employee to go to dinner with him. This is not quid pro quo sexual harassment because the offending employee has no authority to affect the terms or conditions of the other employee's work if she refuses to accept his invitations. If the offending employee's behavior becomes sufficiently "severe and pervasive," it may become hostile environment sexual harassment. However, the church generally is not liable for hostile environment sexual harassment by a non-supervisory employee unless it was aware of it and failed to take "immediate and appropriate corrective action."
• A church is subject to Title VII. It adopts a written sexual harassment policy that defines harassment, encourages employees to report harassing behavior, and assures employees that they will not suffer retaliation for reporting harassment. A male supervisory employee engages in frequent offensive remarks and physical contact of a sexual nature with a female employee. The female employee is greatly disturbed by this behavior, and considers it inappropriate in a church. In fact, she had sought church employment because she considered it a safe environment and her job would be a ministry. The supervisor eventually dismisses the employee because of her refusal to "go along" with his offensive behavior. Throughout her employment, the employee never informed church leadership of the supervisor's behavior. Several months after her termination, the employee files a sexual harassment complaint with the EEOC. Will the church be liable for the supervisor's behavior under these circumstances? After all, it was not aware of the supervisor's behavior, and it adopted a written sexual harassment policy. The supervisor's behavior constituted "hostile environment" sexual harassment for which the church will be liable. The fact that the church leadership was unaware of his offensive behavior is not relevant. Further, the church's sexual harassment policy is no defense, since the employee suffered a "tangible employment decision" (dismissal) as a result of her refusal to go along with the supervisor's behavior.
• Same facts as the previous case study, except that the employee was not dismissed and suffered no "tangible employment decision" (firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits). The general rule is that an employer is liable for a supervisor's "hostile environment" sexual harassment that does not result in a tangible employment decision against the victim. However, the employer has an "affirmative defense" to liability if (1) it adopted a sexual harassment policy that was adequately communicated to employees, and (2) the victim failed to pursue her remedies under the policy. The church in this case qualifies for the affirmative defense. It adopted a sexual harassment policy, and the victim failed to follow the policy's complaint procedure. As a result, the church probably would not be liable for the supervisor's behavior.
• Same facts as the previous case study, except that the church is not subject to Title VII (it only has five employees). The church still may be liable under a state civil rights law, or under other legal theories (such as "intentional infliction of emotional distress," negligent selection or supervision, assault and battery, invasion of privacy, or false imprisonment).
• A church is subject to Title VII. It has not adopted a written sexual harassment policy. A female employee files a complaint with the EEOC, claiming that a supervisor has engaged in hostile environment sexual harassment. She never informed church leadership of the supervisor's behavior before filing her complaint with the EEOC. The church will be responsible for the supervisor's behavior under these circumstances. It does not qualify for the "affirmative defense" because it failed to implement a sexual harassment policy.
• Same facts as the previous case study, except that the church had adopted a written sexual harassment policy that was communicated to all employees. The church will have an "affirmative defense" to liability under these circumstances, because it adopted a sexual harassment policy and the victim failed to follow it by filing a complaint. These two examples demonstrate the importance of implementing a sexual harassment policy. Such a policy can insulate a church from liability for a supervisor's hostile environment sexual harassment—if no "tangible employment decision" was taken against the victim, and the victim failed to pursue his or her remedies under the policy.