Training cuts lawsuit impactFEATURE STORIES Friday, March 1st, 2013
By David Middlebrook
A crucial part of the church’s training program should include the prevention of sexual harassment. Many churches overlook this area of risk because they do not think that it will happen in a church context.
Unfortunately, the church is not immune from episodes of sexual harassment from taking place within its walls. It is crucial that churches understand what constitutes sexual harassment, how to prevent it and how to handle it should it occur.
Sexual harassment is prohibited at the federal level by Title VII of the Civil Rights Act of 1964. If your church is engaged in interstate commerce (a very, very broad view) and has at least 15 members, then the federal ban on sexual harassment legally applies. Moreover, your state is likely to have its own legal requirements and it will not include the necessity of engaging in interstate commerce and frequently will apply to organizations with fewer than 15 members.
Although training is not required by federal or state law for churches, your church should nevertheless train its personnel and volunteers on the prevention of sexual harassment because several Supreme Court cases, federal and state court decisions and Equal Employment Opportunity Commission (EEOC) Guidelines make it clear that sexual harassment training is essential and is expected among all employees, including churches.
Impact of training
For example, in order to raise a defense or avoid punitive damages in sexual harassment lawsuits, employers must show they have provided periodic sexual harassment training to all employees and to regular volunteers. Failure to do so can result in high financial damages assessed against the church in the event a case of sexual harassment was successful.
The EEOC regulations define the term “sexual harassment” as follows:
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.
The EEOC definition of sexual harassment is generally the same as that used in state and federal courts. In fact, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), marked the United States Supreme Court’s recognition of certain forms of sexual harassment as a violation of Civil Rights Act of 1964 Title VII, and established the standards for analyzing whether conduct was unlawful and when an employer would be liable.
There are at least two forms of sexual harassment that should be discussed in any training that your church may have:
- Quid Pro Quo: Latin for “this for that” or “something for something,” this type of sexual harassment involves tangible employment action against the victim and generally involves monetary loss or change in job. When instances of sexual harassment of this form occur, training and polices are less likely to mitigate a church’s liability.
- Hostile Work Environment: This form of sexual harassment involves speech or conduct that is severe and/or pervasive enough to create an abusive or hostile work environment.
In the event an employee or volunteer makes a claim for hostile work environment, the focus of the inquiry will be on the organization’s sexual harassment policies, training and how the church responds to the situation once it is brought to the church’s attention. The church’s training will have the most impact in reducing any fines or damages under this form of sexual harassment claim.
Consent not a defense
Regardless of the type of sexual harassment that may occur, it is important to recognize that even the ultimate consent to the act of intercourse is not a defense, according to the Supreme Court, because the relevant question for the court is whether the victim by his or her conduct indicated the sexual advances themselves were unwelcome and not whether there was eventual consent to the act.
Also, it should be noted in training that the parties who can be involved in a sexual harassment suit can include not only the perpetrator but also direct victims, bystanders and witnesses. Again, this is why training is so important: sexual harassment is an organization’s problem and not just the problem of the individuals directly involved.
Accordingly, it is important for a church to periodically conduct sexual harassment training and to keep a record of the training as the combination of training and evidence of such can help a church prevent or mitigate damages, especially as to a hostile work environment claim where the focus will be on the organization’s policies, training and response to the situation.
In addition to communicating the legal information to your church’s employees and volunteers through training, you should make sure to review and disseminate your organization’s sexual harassment policy.
Required to report
In your training, it is important that the church emphasize to employees/volunteers knowledge of the sexual harassment policy and reporting procedure, the fact that all employees/volunteers are required to report any incidents that an individual may experience directly or may be a witness to, the need to cooperate with investigations, the organization’s desire to support victims and the organization’s lack of tolerance for sexual harassment.
The training should emphasize to supervisors that, in addition to the above, all supervisors have a duty to immediately report any complaint that they receive from their employees or incidents that they witness. Supervisors should be trained that they should demonstrate a willingness to hear and objectively discuss complaints and understand the importance of telling the alleged victim that confidentiality will be respected as much as possible but may not be completely assured in order to investigate fully and properly – though no retaliation against them will be tolerated.
Further, supervisors should not object if the employee prefers to or actually does bypass the “chain of command.”
Lastly, it is important to seek the advice and involvement of experienced legal counsel when any formal complaint is made because this area has so much potential legal liability and public relations implications to the organization.
David Middlebrook is a partner with Anthony and Middlebrook of The Church Law Group, Grapevine, TX. [www.ChurchLawGroup.com]
Responding to an allegation
First, keep the accused and the claimant separated while an investigation is made.
Second, notify your insurer, governing church body and legal counsel.
Third, interview the parties involved as well as any witnesses. Be sensitive and do not go into a full interrogation. Your goal is to collect facts and document the interviews.
Fourth, work with a legal counsel to make an assessment and offer pastoral counseling as appropriate.