By Richard R. Hammar
The Clarence Thomas hearings elevated sexual harassment into the national consciousness with predictable results—the number of sexual harassment claims skyrocketed. Church leaders need to be aware of this potential basis of liability so that appropriate preventive measures can be taken. This article will define sexual harassment and suggest ways churches can reduce the risk of sexual harassment claims.
What is sexual harassment?
What is its relevance to churches and church leaders? Consider the following:
Frequency. Several recent surveys demonstrate that sexual harassment is a common occurrence in the workplace. One major study found that 42 percent of female employees and 15 percent of male employees claimed to have been victims of sexual harassment on the job. Another survey found that over 50 percent of all female employees claimed to have experienced unwanted sexual attention on the job.
Who is the most likely offender? One survey found that 46 percent of all sexual harassment complaints allege that the victim’s immediate supervisor is the perpetrator (33 percent name a coworker and 9 percent a supervisor in another department).
Key point. In a survey conducted by Christian Ministry Resources in 1993, 8 percent of church secretaries claimed they had suffered sexual harassment on the job. In 29 percent of these cases the alleged offender was a minister; in 16 percent of the cases the alleged offender was another staff member; and in 55 percent of the cases the alleged offender was a church member.
Sexual harassment defined. Sexual harassment has been determined to be a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. 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). Nevertheless, many state and federal courts have permitted women to file sexual harassment lawsuits even though their employers are not subject to Title VII, and such courts often follow cases decided under Title VII. Therefore, Title VII cases are relevant in any discussion of sexual harassment, as are the Equal Employment Opportunity Commission (EEOC) regulations interpreting Title VII. 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 Section 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.
Liability under state law. Many employers who are not subject to Title VII have been sued for alleged sexual harassment under state law. In fact, many victims of sexual harassment prefer not to sue on the basis of Title VII even if their employers are covered under Title VII. The reason: Victims typically receive much higher awards of monetary damages in state court. Lawsuits brought under state law typically allege that the employer is guilty of one or more of the following: (1) "intentional infliction of emotional distress," (2) defamation, (3) negligent selection or supervision, (4) assault and battery, (5) loss of consortium, (6) invasion of privacy, (7) wrongful discharge, or (8) false imprisonment. In addition, many states have enacted their own laws banning sexual harassment, and such laws are much more likely to apply to local churches.
Consent not a defense. Is the victim’s consent a defense to sexual harassment? The United States Supreme Court, in responding to this question, has 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 addressed unwelcome sexual contact, whether or not that contact is voluntary.
Church liability. Is a church (or other employer) liable for acts of sexual harassment committed by its workers? According to the EEOC guidelines, the answer is "Yes." The guidelines provide:
[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 functions 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.
An employer may also be responsible for the acts of nonemployees, 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 nonemployees.
Many state courts have adopted similar conclusions in sexual harassment cases not brought under Title VII. The key point to understand is that an employer (including a church) can be legally responsible for the sexual harassment of its agents and supervisory personnel even if the employer was unaware of the conduct and the conduct violates the employer’s written policy prohibiting sexual harassment. The reason: Supervisory personnel are considered to be agents of the employer; accordingly, their work-related misconduct is imputable to the employer whether or not the employer is aware of it.
Example. A woman was hired as an associate pastor of a church in Minnesota. A year later she filed a discrimination charge with the state department of human rights against her supervising pastor. She claimed that her supervising pastor repeatedly made unwelcome sexual advances toward her. He allegedly referred to themselves as lovers, physically contacted her in a sexual manner, and insisted on her companionship outside the workplace despite her objections. The woman informed her local church leaders as well as her synod before filing the complaint with the state. Although the church and synod investigated the woman’s allegations, no action was taken to stop the alleged harassment. Less than 3 months after the complaint was filed with the state, the church held a congregational meeting at which it voted to dismiss the woman as pastor. The reason stated for the discharge was the woman’s "inability to conduct the pastoral office efficiently in this congregation in view of local conditions." A state appeals court ruled that the woman could sue her former supervising pastor for sexual harassment. The court also rejected the supervising pastor’s claim that the woman was prevented from suing because she had consented to the supervising pastor’s conduct.
Because of the substantial threat that sexual harassment allegations pose to an employer, it is important to engage in preventive measures. Consider the following:
Adopt a written policy. Adopt a written policy prohibiting sexual harassment. The policy, which can be adopted by the board of directors, should define sexual harassment (both quid pro quo and hostile environment) and state unequivocally that it will not be tolerated and will be the basis for immediate discipline (up to and including dismissal). The policy also should (1) contain a procedure for filing complaints of harassment with the employer, (2) encourage victims to report incidents of harassment, (3) assure employees that complaints will be investigated promptly, (4) assure employees that they will not suffer retaliation for filing a complaint, (5) discuss the discipline applicable to persons who violate the policy, and (6) assure the confidentiality of all complaints.
A policy containing these elements can reduce an employer’s risk of liability in a sexual harassment case. In a landmark 1986 decision, the United States Supreme Court ruled that the adoption of a policy prohibiting harassment would not automatically insulate employers from liability. However, the Court stated that the existence of such a policy and a procedure for filing grievances were "plainly relevant" in evaluating an employer’s liability. Further, the Court noted that an employer’s position would be "substantially stronger" if its policies and procedures were "calculated to encourage victims to come forward."
Communicate. Communicate the written policy to all workers.
Investigate. Investigate all complaints immediately.
Discipline. 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. Follow up by periodically asking the victim if there have been any further incidents of harassment.
Handling difficult cases
Unfortunately, many sexual harassment cases end up being one employee’s word against another’s (precisely the same impasse the nation witnessed in the Clarence Thomas hearings). How should an employer proceed in such a case? This presents employers with a difficult task. Consider the following measures:
Interview the victim. Obtain a detailed account of the alleged acts of harassment. Look for inconsistencies in the victim’s version of the harassment. Also, note the victim’s demeanor. Assure the victim that you take the accusations seriously and that he or she will not be subject to any retaliation for filing a complaint.
Prepare a detailed history of the case. Begin with the date of employment and record every significant date in the alleged victim’s work history (promotions, demotions, pay raises, changes in responsibilities) and every alleged act of harassment. See if there is any correlation between the victim’s work history and the dates of the alleged incidents of harassment. Does such a correlation suggest a possible motive in filing an allegation of harassment?
Interview the accused. Interview the alleged perpetrator and look for inconsistencies in this person’s story. Observe the person’s demeanor.
Review work record. Review the work record of the alleged perpetrator. Have similar complaints been filed against this person?
Interview witnesses. Do not suggest answers or disclose information. For example, in speaking with a coworker of the victim, you might ask, "Have you ever seen anyone engage in inappropriate behavior with [the victim] during work?" Do not ask, "How often did you see John touch [the victim]?"
Documentation. Look for any documentation that would support the victim’s charges (e.g., notes and letters).
Additional evidence. If the case is still in doubt, ask the alleged victim for any additional evidence to support his or her claim. If there is no additional evidence, and the employer determines that the allegations of harassment were not proven, then the employer should assure the alleged victim that (1) the employer takes such charges very seriously, (2) the allegations were fully investigated, and (3) there will be no adverse consequences for filing the complaint. Further, the alleged victim should be encouraged to report immediately any additional evidence or any further incidents of harassment.
The EEOC guidelines state: "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.Richard Hammar, J.D., LL.M., CPA, and legal counsel to The General Council of the Assemblies of God, has produced many legal guides for churches, including Pastor, Church & Law, application forms, and the resource kit "Reducing the Risk of Child Sexual Abuse in Your Church." He also operates web sites, including ChurchLawToday.com and ReducingTheRisk.com, that contain helpful information for church leaders