The Law on Sexual Harassment - Christianity Today

What to do if someone is accused.If someone alleges sexual harassment, pastors should consult with their attorneys for specific advice. But here are some basics to keep in mind.

WHAT IS SEXUAL HARASSMENT?

As the Supreme Court explained in Harris v. Forklift Systems, Inc. (1993), discrimination in the “terms, conditions, or privileges of employment” on the basis of sex is sexual harassment. Courts have recognized two forms of sexual harassment:

quid pro quo: When an employee is subjected to unwelcome advances and submission is explicitly or implicitly made a condition of employment. The employee either complies or risks termination or demotion.

hostile environment: When the employer (directly or through agents) creates an intimidating, hostile, or offensive work environment.

The conduct must be severe and pervasive enough that a reasonable person would find the environment to be hostile and abusive, and the victim must perceive the environment to be abusive. The frequency and severity of the conduct–and whether it involved threatening or humiliating acts or unreasonably interfered with the victim’s work performance–all will be considered by a court. A single offensive utterance usually will not create a hostile environment, but one severe act of aggression by a supervisor might.

WHO IS LIABLE?

The perpetrator is always liable for his or her own acts. However, the employer also will be liable if sexual harassment is committed within the scope of employment, or if an employer knew or should have reasonably known of the employee’s misconduct. In the case of a church, the employer may be the congregation, a regional grouping, or even a denomination.

In quid pro quo cases, employers are strictly liable regardless of their knowledge because the harassment is within the scope of employment of the perpetrator. In hostile environment cases, employers may avoid liability when they have taken reasonable precautions to prevent sexual harassment, had no knowledge of the offending conduct, and responded appropriately when the offending conduct was reported.

HOW SHOULD WE RESPOND TO ALLEGATIONS?

1. Remove the accused from contact with the claimant, pending investigation. The claimant should be offered pastoral assistance as appropriate, including interim counseling.

2. Notify your insurer, attorney, and governing church bodies. If the accused is a public personality, consider obtaining advice from a media consultant as well.

3. Interview the claimant, accused, and any witnesses with sensitivity. Document these interviews.

4. Determine whether the claim of sexual harassment is (a) substantiated, (b) unfounded, or (c) undetermined.

substantiated: A guilty perpetrator should be disciplined, either by termination or in-service training, depending on the severity of the harassment. The victim should receive appropriate treatment, such as an offer of counseling and even a monetary settlement if there has been injury.

unfounded: The innocent accused should be reinstated, and both the accused and the accuser should be offered counseling to deal with the situation. If the accusation was malicious, consider disciplinary action against the accuser.

undetermined: If you cannot determine who is telling the truth, the accused should be reinstated but not permitted to supervise the accused. The church should monitor the accused closely for a period of time and react swiftly to any future misconduct.

5. Document your conclusions and retain the record in your files.

HOW CAN HARASSMENT BE PREVENTED?

Each church should craft policies specifically prohibiting sexual harassment and setting forth procedures for responding to allegations. The policies should be presented at a training session in which employees sign an attendance sheet.

Employees should be encouraged to come forward with any complaints of sexual harassment and must be assured they will not face retaliation for doing so. A designated person should administer the policy and respond to complaints.

–James C. Geoly, legal counsel, Mayer, Brown & Platt

Chicago, Illinois

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