Article summary. A federal court in Texas addressed the complex legal issues surrounding the sexual seduction of church employees by a minister. The court concluded that the employees could sue the minister for negligence, breach of a fiduciary duty, and intentional infliction of emotional distress—even though the sexual relationships were allegedly consensual. However, the court dismissed the employees’ sexual harassment claims against the minister, all of the employees’ claims against the church, and the minister’s wrongful termination claim against the church. This important ruling is discussed fully in this feature article.
When a minister engages in a sexual relationship with a church employee, several legal consequences may result affecting the minister, church, and employee. Many of these consequences were illustrated in a recent federal court ruling in Texas. The court’s ruling will be instructive to all church leaders. This article will summarize the facts of the case, explain the court’s ruling, and evaluate the importance of the case to other churches and church staff members.
A church’s minister of education was contacted by a woman seeking marital counseling. At the time, the woman was employed as a waitress at a local restaurant. The relationship resulted in a sexual affair that lasted several months. During this time the minister hired the woman as a receptionist at the church. She later informed the minister that she wanted to quit seeing him.
At the same time that he was seeing this woman the minister was engaging in sexual relations with another woman who had come to him for marital counseling. The second woman, like the first woman, was hired to work in the church office. The second woman informed the minister that she wanted to terminate their relationship after an affair lasting nearly a year and a half.
The two women worked next to each other in the church office. One of them informed the other of her affair with the minister and was shocked to learn of the other’s similar experience. The women informed a church deacon of their relationships with the minister, and the minister was confronted immediately. He confessed to the church’s senior minister that he had committed adultery with both women, and accepted the church’s request to resign. The two women were placed on administrative leave with pay pending an investigation, and a few months later they were dismissed.
The women later sued the dismissed minister on the basis of:
- malpractice in pastoral counseling
- breach of fiduciary duties
- sexual harassment in employment
- intentional infliction of emotional distress
The women also sued the church on the basis of:
- breach of fiduciary duties
- malpractice in pastoral counseling
- intentional infliction of emotional distress
- negligent hiring
- negligent retention
- negligent supervision
- sex discrimination in dismissing them from employment
- sexual harassment in employment
- retaliation for disclosing sex discrimination
Both the dismissed minister and church asked the court to dismiss the case. The court’s response to these requests is summarized below.
The claims against the dismissed pastor
malpractice in pastoral counseling
The women claimed that the dismissed minister’s conduct constituted “malpractice in pastoral counseling.” The minister countered by arguing that pastoral counseling is rooted in religion and cannot be the basis for civil liability. The court concluded that the pastor could be sued for his actions. It observed that
[we agree] with the many decisions that have held that an action for clergy malpractice could not be maintained because the evaluation of such a complaint would require the court to extensively investigate and evaluate religious tenets and doctrines. However, tort claims for behavior by a cleric that does [sic] not require the examination of religious doctrine are cognizable. The free exercise [of religion] clause does not relieve an individual of the obligation to comply with neutral laws of general applicability … nor does it shield clergy from all liability for their wrongs.
In addition, while spiritual counseling, including a cleric’s marital counseling, may implicate first amendment rights, the court is not convinced that [the women’s] allegations permit [the minister] to assert a free exercise defense. When the free exercise [of religion] clause is raised as a defense, the threshold question is whether the conduct of the defendant is religious. In the spiritual counseling context, the free exercise clause is relevant only if the defendant can show that the conduct that allegedly caused plaintiff’s distress was in fact part of the belief and practices of the religious group.
In other words, pastoral counseling is protected from civil liability only if the practice is itself religious. In this case, however, the actions of the dismissed minister in engaging in prolonged adulterous affairs with two women were not religious. The court observed:
[The minister’s] preying on [the women], masqueraded in the form of marriage counseling, constitutes conduct that is not subject to first amendment protection. Certainly such conduct is not part of the beliefs and practices of [the church]. Therefore, to the extent that [the women’s] claim is based on [the minister’s] holding himself out to provide services of a marriage counselor, [their] claim under these circumstances is for professional malpractice by a marriage counselor, not clergy malpractice. Although [the lawsuit] labels this claim negligence (malpractice in pastoral counseling), the court will construe the claim based on the facts alleged as one for professional malpractice by a marriage counselor.
In support of this conclusion, the court pointed to the following facts: (1) The minister offered his services to help the women with their marital problems. (2) Each woman claimed that the minister offered “to provide me with marital counseling,” and described the nature and extent of the marriage counseling and the fact that the minister bragged about his “skills and experience as a marital counselor.” (3) The minister held himself out as a skilled and experienced marital counselor with a psychology degree, and undertook to provide such counseling.
• Key point. The courts have consistently refused to find clergy liable on the basis of “malpractice” for their pastoral counseling. However, this case illustrates that this rule only applies to the content of counseling that is religious in nature, and not to inappropriate behavior that is engaged in during the counseling relationship. The court concluded that ministers who engage in sexual contact with counselees in the course of marriage counseling may be sued on the basis of malpractice—as marriage counselors rather than as clergy.
breach of fiduciary duties
The women claimed that the dismissed minister breached his “fiduciary duty” to them by taking advantage of the “special confidence and trust” they had placed in him as a pastoral counselor. Specifically, they maintained that a fiduciary relationship existed on the basis of the following factors:
(1) They entered into a counselor—counselee relationship with the dismissed minister based, in part, on his representations regarding his expertise in marriage counseling.
(2) The dismissed minister solicited their trust and confidence with his alleged ability to help them with their marital problems.
(3) The dismissed minister made misrepresentations to them for the purpose of seducing their affections and emotional dependence for his own benefit rather than their’s.
(4) The dismissed minister breached his fiduciary duty in disclosing to others confidential information he obtained during counseling with the two women.
The church insisted that the position of religious advisor does not impose a fiduciary duty or establish a fiduciary relationship. The church pointed out that no Texas court had recognized a fiduciary relationship between a minister and a member of a congregation. Once again, the court agreed with the women and allowed them to sue the dismissed minister for breaching a fiduciary duty that he owed them as a pastoral counselor. While conceding that Texas courts have not recognized a fiduciary relationship between a minister and counselee, the court did note that the state supreme court had recognized that certain “informal relationships” may give rise to a fiduciary duty. The supreme court stated that such “informal fiduciary relationships … may arise where one person trusts in and relies upon another, whether the relation is a moral, social, domestic or merely personal one.” The supreme court further noted that because not every relationship involving a high degree of trust and confidence is a fiduciary relationship, “the law recognizes the existence of [such] relationships in those cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed.”
The state appeals court concluded that “genuine issues of material fact are present in this case regarding whether confidential relationships existed between [the dismissed minister and the women] in which influence had been acquired and abused, in which confidence had been reposed and betrayed.” As a result, in ruled that the women could proceed with their lawsuit against the minister on the basis of a breach of his fiduciary duties. The court noted that if the women’s allegations were true, it
would have little difficulty finding that [the dismissed minister owed the women] a fiduciary duty as a marriage counselor …. His duty would be created by his undertaking to counsel them. Moreover, [his] alleged undertaking would create a duty to engage in conduct designed to improve [the women’s] respective marital relationships. Thus, entering into the sexual relationships would be clear evidence of a breach of [his] fiduciary duties.
• Key point. A number of courts have ruled that a “fiduciary relationship” arises when a minister engages in a counseling relationship with another person, and that this relationship imposes a duty upon the minister to act in the best interests of the counselee. This duty is breached when the minister engages in sexual contact with the counselee. This may be true even if the sexual contact is consensual.
• Key point. The court suggested that a minister can be sued on the basis of a breach of fiduciary duty if confidential information obtained during the counseling relationship is disclosed.
sexual harassment in employment
The women claimed that the dismissed minister sexually harassed them. The court rejected this theory of liability. It noted that to establish sexual harassment in the work place, a plaintiff must show that:
(1) she belongs to a protected class; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.
The court ruled that the minister could not be liable for sexual harassment for his activities prior to the time the women terminated their sexual relationships with him. It concluded that the women’s argument that they were incapable of giving psychological consent is without merit … the court finds that [they] freely consented to their respective adulterous affairs with [the minister].
• Key point. The court erred in ruling that sexual harassment cannot exist if the victim consents to the harassment. The law defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Sexual harassment occurs if the offender’s actions are unwelcome, even if the victim consents to them. Many times victims feel they have choice but to consent. The United States Supreme Court, in addressing this question, observed: “[T]he 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.
The court found no evidence of sexual harassment after the women terminated their sexual relationships with the dismissed minister. Further, the dismissed minister had no opportunity to punish the women for terminating their relationships with him since he was fired a few weeks later when the women informed church officials.
intentional infliction of emotional distress
The women claimed that the dismissed minister’s misconduct amounted to “intentional infliction of emotional distress.” The court noted that intentional infliction of emotional distress requires proof that (1) the dismissed minister acted intentionally or recklessly; (2) his conduct was extreme or outrageous; (3) his actions caused the women emotional distress; and (4) the emotional distress was severe. The court concluded that the dismissed minister’s misconduct, if proven, could satisfy all four of these requirements. It observed: “[The women’s] allegations that [the minister] sexually harassed [them] at work, made graphic sexual comments and gestures, and engaged in a sexual relationship, at relatively the same time, with two employees who worked within a few feet of each other, could rise to the level of extreme or outrageous conduct under certain circumstances.”
The claims against the church
breach of fiduciary duty, malpractice in pastoral counseling, intentional infliction of emotional distress
The women claimed that the church was liable for the dismissed minister’s breach of fiduciary duty, malpractice in pastoral counseling, and intentional infliction of emotional distress. The court noted that the church could be liable for these “intentional wrongs” only if the dismissed minister was acting “within the course and scope of his employment” at the time he was counseling the women and engaging in sexual contact with them. The court concluded that the women had failed to prove that the minister’s misconduct occurred within the course and scope of his employment:
Counseling was not a part of [the dismissed minister’s] job description or within his job authority. [The senior pastor] informed [him] that he was never to counsel ….
In addition, the court notes that sexual misconduct by a member of the clergy is, by the weight of the authority, beyond the scope of employment of the cleric. Furthermore, [the church’s] policy provided that adultery by any member of the clergy is immediate grounds for dismissal. Thus, the court finds that [the church] should not be held vicariously liable for any intentional torts attributed to [the dismissed minister].
The court conceded that the dismissed minister’s counseling could be within the course and scope of his employment if church officials were aware that he was counseling with the two women but took no action to stop him. The women pointed to the following incidents to demonstrate that the church knew the minister was counseling with them:
On one occasion an associate minister of the church walked into the dismissed minister’s office and found him alone with one of the two women. The associate minister later informed the woman that the dismissed minister was not supposed to be counseling with anyone. The court concluded that this incident did not prove that the church “knew” that the dismissed minister was counseling with one of the women, because when the associate minister asked the woman if the dismissed minister had been counseling with her she replied “no.”
The two women provided several examples of other women who “felt uncomfortable” around the dismissed minister. The court insisted that this evidence does not show that [the church] knew that [the dismissed minister] was counseling [the women] or that he was engaged in a sexual relationship with them.
The senior pastor told the dismissed minister that his car was seen parked outside the home of one of the two women. Again, the church insisted that this evidence did not establish that the church was aware that the dismissed minister was counseling with the woman. Further, it pointed out that “when [the women] informed [the church] of [the minister’s] conduct [the church] promptly requested [his] resignation.”
The women also claimed that the church was liable for the dismissed minister’s acts on the basis of ratification. The court conceded that an employer that ratifies the misconduct of an employee may be liable for that misconduct. It noted that ratification occurs when the employer fails to repudiate the known acts of an employee. However, it found that the church did not ratify the [wrongful] acts because [the women] have failed to show that [the church] knew or should have known about such conduct.
negligent hiring, negligent retention, negligent supervision
The women claimed that the church was responsible for their injuries on the basis of its negligence in hiring, retaining, and supervising the dismissed minister. The court disagreed. It noted that
In Texas, employers have a duty to inquire as to the competence and qualifications of those the employer considers for employment …. To prevail on a claim for negligent hiring or supervision, a plaintiff must show that the employer retained in its employment an individual who was incompetent or unfit for the job as a result of a failure to make a reasonable inquiry into the individual’s competence and qualifications.
However, the court concluded that the church “made a reasonable inquiry into [the dismissed minister’s] competence and qualifications.” It pointed to the following factors:
A member of the church’s pastoral search committee was informed by a friend that the dismissed minister had a good reputation.
A member of the church’s pastoral search committee contacted three references from the dismissed minister’s previous employer (another church). All three references had favorable comments regarding the minister.
A member of the pastoral search committee met with the dismissed minister on one occasion.
The church’s senior pastor and two other church members met with the dismissed minister on another occasion.
The dismissed minister and his wife met with all of the members of the search committee.
A former pastor of the dismissed minister’s prior church employer, and currently a denominational leader at the state level, told the senior pastor that “I want you to know that if I were to leave denominational work and go back into the pastorate today, that I would do whatever I had to do and pay whatever I had to pay to get [the dismissed minister] on my staff as education minister. He’s the best there is.” The denominational official was the dismissed minister’s supervisor for more than ten years in his prior church.
The church received a very favorable recommendation from another denominational official.
The court concluded: “[The church] was only required to conduct a reasonable search, not an exhaustive investigation. Therefore, the court finds that [it] did conduct a reasonable search into [the dismissed minister’s] competence and qualifications before it hired him.”
In rejecting the women’s claim that the church was guilty of negligent retention and negligent supervision the court pointed out that the church “did not know, nor should it have known, that [the minister] was counseling [the women] and engaging in a sexual relationship with them.” The court noted that the women “worked within a few feet of each other without knowing of each other’s relationship with [the minister].”
• Key point. The court concluded that the church was not negligent in hiring the minister on the basis of (1) the positive comments of several references, including the minister’s former supervising pastor, and (2) a personal interview.
• Key point. The court concluded that a church cannot be responsible on the basis of negligent retention or negligent supervision for the sexual misconduct of a pastor if his two victims worked next to each other in the church office and were unaware of the other’s relationship with him.
sex discrimination in dismissing the women from employment
The women claimed that the church committed unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964 by dismissing them from employment. The court noted that to win a sex discrimination case under Title VII, a plaintiff must
first prove by a preponderance of the evidence a prima facie case of discrimination. The plaintiff may prove her case by direct or circumstantial evidence. A plaintiff makes out a prima facie case of sex discrimination by proving: (1) she was discharged; (2) she was qualified for the position; (3) she was within the protected class at the time of discharge; and (4) she was replaced by someone outside the protected class, or otherwise discharged because of her sex. If the plaintiff is successful in making out a prima facie case of discrimination, the burden shifts to the defendant to show a legitimate, nondiscriminatory reason for the adverse employment decision. If the defendant articulates a nondiscriminatory reason of its adverse employment action, then the presumption is rebutted and the plaintiff must prove that the nondiscriminatory reason was a pretext for discrimination.
The court concluded that the women had failed to demonstrate that the church committed sex discrimination, noting that
[they] have offered no evidence to show that they were replaced by someone outside the protective class, or that they were discharged because of their sex. Thus, [they] have failed to make out a prima facie case of discrimination. In addition, even if [they] did make out a prima facie case of discrimination, [they] have produced no evidence to show that [the church’s] reasons for terminating them were a mere pretext for discrimination. Rather, after [the church] learned that [the women and the dismissed minister] had entered into adulterous relationships [the church] placed [the women] on administrative leave with pay pending an investigation and advice from the insurance carrier regarding potential church liability. Furthermore, [the church] promptly requested [that the minister] resign. After [the women] were placed on leave [the church] assigned their former duties to incumbent female employees.
The court noted that the church’s personnel policies provide that any moral conduct that is inconsistent with the “Lord’s standards” is “just cause” for an employee’s dismissal. The women did not dispute that entering into an adulterous relationship was inconsistent with the Lord’s standards. After the church concluded its investigation it offered the women the opportunity to resign. When they refused, the church terminated them for violating the personnel policy prohibiting conduct inconsistent with the Lord’s standards. Based on this uncontradicted evidence, the court concluded that the women “have failed to offer any evidence to show that [the church’s] reasons for terminating them were a mere pretext for discrimination.” The court rejected the women’s claim that their conduct was somehow legitimized by their inability to “consent” to their sexual relations with the minister.
The women claimed that the dismissed minister received a more favorable termination package, and that this amounted to sex discrimination by the church in violation of Title VII. The court rejected this argument, noting that the church asked the dismissed minister to resign immediately, and gave him one month severance pay. The church placed the women on involuntary leave with pay for two months, and paid them for two months of psychiatric counseling. The court concluded that “[a]ny difference in the termination package between [the women and the minister] is immaterial to a proper determination of [the women’s] sex discrimination claim.”
• Key point. Churches are free to dismiss employees for violation of religious standards, so long as such dismissals are not a pretext for unlawful discrimination and “similar cases are treated similarly.” In this case, the church avoided liability for sex discrimination since it treated similarly a male and two females guilty of adultery.
sexual harassment in employment
The court noted that the women had failed to demonstrate that the dismissed minister had sexually harassed them, and therefore the church could not be responsible either. The court further noted that even if the women had proven that the dismissed minister’s actions amounted to sexual harassment, his employing church could not be responsible for his acts unless it “knew or should have known of the harassment and failed to take prompt remedial action.” The court pointed out that the church “did not know, nor should it have known of [the minister’s] conduct.”
This is the second serious error made by the court (the first was its conclusion that “consensual” acts can never constitute sexual harassment). Guidelines published by the Equal Employment Opportunity Commission (a federal agency that enforces Title VII) specify:
[A]n employer … is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The Commission will examine the circumstances of the particular employment relationship and the job junctions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity.
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.
To summarize, if the dismissed minister was the church’s agent or was a “supervisory employee” the church could have been responsible for his acts of sexual harassment whether or not it knew or should have known they were occurring—even if they were strictly forbidden by the church’s policies. It is possible if not likely that a minister of education (such as the dismissed minister) would be deemed an agent or supervisory employee.
retaliation for disclosing sex discrimination
The women claimed that the church had committed unlawful “retaliation” against them in violation of Title VII. Title VII prohibits employers from retaliating against employees for conduct protected by Title VII. The women claimed that the church retaliated against them unlawfully by dismissing them for disclosing the relationships they had conducted with the dismissed minister. The court disagreed, noting that the church could not be responsible for retaliation since its decision to dismiss the women was not sex discrimination.
The minister’s claims against the church
The dismissed minister sued the church on the basis of breach of contract and wrongful dismissal. Specifically, he claimed that the senior pastor and a deacon “made unkept promises” to him that induced him to sign his letter of resignation and letter of repentance. One alleged promise was that the pastor would “secure him reemployment without breaching confidences.” Presumably, this meant that the senior pastor would recommend the dismissed minister to other congregations without disclosing the nature of his misconduct. The court pointed out that the senior pastor did not promise to secure reemployment for the dismissed minister, but merely assured him that he would “help him find a job.” The court observed that “this naked assertion does not constitute a binding contract because it lacks consideration.” The court also concluded that the first amendment prevents the civil courts from resolving wrongful dismissal lawsuits brought by dismissed ministers against their former churches:
Civil court review of ecclesiastical decisions of church tribunals, particularly those pertaining to the hiring or firing of clergy, are in themselves an extensive inquiry into religious law and practice, and hence forbidden by the first amendment. Courts have concluded that matters touching the relationship between a church and its minister, determination of salary, and assignment of duties and location, are matters of church administration and government and thus purely of ecclesiastical cognizance. Religious bodies may make apparently arbitrary decisions affecting the employment status of their clergy members and be free from civil review having done so. By its very nature, the inquiry which [the dismissed minister] would have us undertake into the circumstances of his discharge plunges an inquisitor into a maelstrom of church policy, administration, and governance. It is an inquiry barred by the free exercise clause [of the first amendment].
[The minister] argues that this court can decide this case based on neutral principles because it involves a general contractual dispute. [A federal appeals court has] stated that “the neutral principles doctrine” “has never been extended to religious controversies in the areas of church government, order and discipline, nor should it be.” Hutchison v. Thomas, 789 F.2d 392 (6th Cir. 1986). [The dismissed minister’s] claim relates to his employment as a minister …. Therefore, his claim “concerns internal church discipline, faith, and organization, all of which are governed by ecclesiastical rule, custom, and law.” Therefore, the court finds that the first amendment bars [the minister’s] claims ….
Significance of the case to other churches
What is the relevance of this ruling to local churches? Obviously, a decision of a federal district court in Texas is of limited significance since it has no direct or binding effect in any other state. Nevertheless, there a number of aspects to the ruling that will be instructive to church leaders in every state. Consider the following:
1. Malpractice in pastoral counseling. The court acknowledged that ministers cannot be sued on the basis of malpractice if the resolution of such a lawsuit would require a court to “extensively investigate and evaluate religious tenets and doctrines.” On the other hand, when ministers engage in sexual contact with counselees in the course of a counseling relationship they are subject to civil liability for their acts. Further, the court pointed out that the minister held himself out as a qualified marriage counselor, and it was in this capacity that the two women sought out his services.
• Key point. Ministers who hold themselves out as marriage counselors are more vulnerable to malpractice claims than pastors who engage in counseling in the course of their pastoral duties.
2. Breach of fiduciary duties. The court concluded that ministers who engage in marriage counseling may create a fiduciary relationship with their counselees that imposes upon them a duty to act in the counselees’ best interests. Taking advantage of a counselee’s dependence or vulnerability for purposes of sexual gratification represents a blatant violation of this duty that subjects the minister to legal liability.
• Key point. Ministers who engage in sexual contact with a counselee may be guilty of a number of “intentional wrongs” including battery, breach of a fiduciary duty, and intentional infliction of emotional distress. Generally, intentional wrongs are not covered under a church’s liability insurance policy, and so a minister who commits such acts may find that he must pay for his own attorney and any portion of a judgment or settlement attributable to his conduct. Further, such acts constitute a criminal offense in several states.
3. Sexual harassment in employment. The court erred in concluding the minister was not guilty of sexual harassment with respect to “consensual” sexual contacts with the two female employees. As noted above, sexual harassment occurs if the offender’s actions are unwelcome, even if the victim consents to them. The court also erred in holding that the church could not be liable for the minister’s acts (even if they did constitute sexual harassment) since it was not aware they were occurring. As noted above, guidelines published by the Equal Employment Opportunity Commission specify that “an employer … is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.”
While the court was completely off base in its analysis of the women’s sexual harassment claims, the case does illustrate the potential significance of this basis of liability. Had the court decided these issues correctly, the church likely would have been found liable—assuming that the minister was an agent or supervisory employee of the church.
Sexual harassment is a form of “sex discrimination” prohibited by Title VII of the Civil Rights Act of 1964. Note that Title VII only applies to employers that (1) have 15 or more employees, and (2) are engaged in interstate commerce. Accordingly, it does not apply to most churches (it does apply to many denominational agencies engaged in interstate sales). The court in this case assumed that Title VII applied to the church, without any explanation.
• Key point. Title VII does not apply to most churches. However, most states have enacted their own civil rights laws that often ban sex discrimination and sexual harassment, and it is much more likely that these state laws will apply to churches. As a result, sexual harassment is a theory of liability that all churches should take seriously.
A current EEOC regulation entitled “EEOC Guidelines on Discrimination Because of Sex” specifies, in part:
(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 regulation 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, or (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.
4. Sex discrimination. One of the most important aspects of this case was the court’s conclusion that the church did not commit sex discrimination when it fired the two female employees since it did not treat them any less favorably than it treated the male minister who was sexually involved with them. This case illustrates that churches subject to Title VII can discriminate in employment decisions on the basis of religious standards. However, there are a few very important qualifications here that were mentioned by the court:
The discrimination must in fact be based on religion. Religion cannot be a “pretext” to discriminate on the basis of sex, pregnancy, or some other protected category.
While a church can discriminate on the basis of religion, it must do so in a way that does not adversely impact a protected group of employees. The dismissed female employees insisted that the severance package the church offered the dismissed minister was more attractive than what they were offered. The court evaluated the terms and conditions of the termination of all of these workers, and concluded that the church had treated the women and the male minister similarly. The dismissed minister was forced to resign immediately, and was given one month severance pay. The church placed the two women on involuntary leave with pay for two months, and paid them for two months of psychiatric counseling. The court concluded that [a]ny difference in the termination package between [the women and the minister] is immaterial to a proper determination of [the women’s] sex discrimination claim.
• Key point. Churches can discriminate against employees on the basis of religion, but they must be able to demonstrate that religion is not a pretext of discriminating against a protected group of workers. If the church had dismissed the women but not the minister, the religious exemption would not apply.
5. Negligent hiring. The court acknowledged that employers can be liable on the basis of negligent hiring for the misconduct of an employee committed in the course of employment if a reasonable background investigation into the employee’s “competence and qualifications” was not conducted at the time of employment. In this case, the court concluded that the church conducted a reasonable investigation into the minister’s competence and qualifications at the time he was hired. It based this conclusion on the following facts: (1) the church obtained favorable references from three persons in the minister’s previous church; (2) the minister was interviewed on three occasions (by a member of the pastoral search committee, by the senior pastor and two church members, and by the entire pastoral search committee); and (3) the church obtained favorable references from two denominational officials—one of whom was the minister’s former supervising pastor.
6. Negligent retention and supervision. The court reached the perfectly logical conclusion that a church cannot be liable for negligently retaining and supervising a minister who commits adultery with two female employees if the employees themselves, who worked next to each other in the church office, were not aware of the other’s relations with the minister. This will be a useful precedent to other churches that are accused, in hindsight, of negligently retaining or supervising a minister.
7. The church’s lack of knowledge. The court concluded that the church was not aware that the minister of education was engaging in unauthorized marital counseling, despite the fact that (1) on one occasion an associate minister of the church walked into his office and found him alone with one of the two female employees who later filed the lawsuit; (2) the two female employees provided several examples of other women who “felt uncomfortable” around the dismissed minister; and (3) the senior pastor told the minister of education that his car was seen parked outside the home of one of the two female employees.
• Key point. Had the church known that the minister was violating church policy by engaging in unauthorized counseling, the court would have found it liable for the minister’s wrongful acts on several grounds. This illustrates a critical point—churches that have adopted policies must be sure those policies are being followed. A failure to abide by stated policies can expose a church to significant legal risks. Church leaders should periodically review policies, and assess whether or not they are being followed. If they are not, efforts should be made to immediately begin enforcing them. If this is no longer possible with respect to a particular policy, it should be abandoned.
8. Ratification. The court concluded that the church had not “ratified” the minister’s wrongful acts since it did not know of them and fail to repudiate them.
9. The what ifs? The church in this case handled matters very well. Consider the following: (1) It thoroughly screened the minister of education before hiring him; (2) church policy prohibited the minister from engaging in counseling; (3) church leaders had no knowledge that the minister of education was engaging in unauthorized counseling or in wrongful conduct; (4) when confronted by the two women with allegations of wrongdoing, the church immediately launched an investigation resulting in a paid leave of absence for the women and a forced resignation of the minister; and (5) the church offered comparable “severance packages” to the two women and the minister, thereby avoiding liability for sex discrimination. What if any of these factors had not been present? What if the church had not screened the minister when he was hired? What if the church was aware of unauthorized counseling by the minister of education? What if the church was aware of the minister’s wrongful acts but took no action against him, or treated the women less favorably than the minister? In any of these situations, the church would have faced potentially significant liability for the minister’s wrongful acts.
This case demonstrates how a church can meaningfully reduce its exposure to legal risk by how it handles employment decisions. Church leaders should ask themselves this question—if a woman in our church made similar allegations against our minister, would we be as successful in avoiding liability? Or, would we be vulnerable? This case will provide church leaders with helpful guidance in reducing exposure to legal risk.
Sanders v. Casa View Baptist Church, 898 F. Supp. (N.D. Tex. 1995)