HOW CHURCHES AND NONPROFITS SHOULD ADDRESS SEXUAL HARASSMENT IN THE #METOO ERA
By William R. Thetford Jr., Esq. and H. Robert Showers, Esq.
The #MeToo generation has captured headlines and national attention in recent months, placing a renewed emphasis on understanding, exposing, and preventing sexual misconduct. This topic impacts culture broadly, and churches and nonprofit organizations are not exempt from the danger. This renewed wave of attention to the evil of sexual misconduct, has brought to the surface allegations of abuse regarding actions that occurred, even many years ago. It is imperative that churches and nonprofits understand the legal, practical, and public relations implications of this crucial area. A poorly handled response to such an allegation will mangle the mission of an organization and may lead to an expensive and time-consuming legal labyrinth. Churches and nonprofit organizations are designed to help, not to hurt people. Accordingly, it is of utmost importance that these organizations take action to prevent this threat from taking root in the first place and carefully address any issues that do arise in a prompt and honest way.
The two types of sexual misconduct most likely to confront a church or nonprofit are sexual harassment and child sexual abuse. We have published other articles that cover how to prevent and respond to child sexual abuse here and here, in turn, this article focuses on the topic of sexual harassment. Legal claims for sexual harassment are typically in the employment context. Under Title VII of the Civil Rights Act of 1964 sexual harassment is a form of sex-based discrimination. See 42 U.S.C. 2000e-2(a). Sexual Harassment is defined as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” 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.” 29 C.F.R. 1604.11(a) (2018).
Sexual harassment is often further categorized as quid pro quo harassment or a hostile work environment. “Quid pro quo” is Latin for “this for that.” The fundamental characteristic of quid pro quo claims is that a supervisor explicitly or impliedly requires an employee to submit to sexual abuse of some sort in return for advancement in the work place or continued employment. In cases of quid pro quo harassment, the employer can be liable for the abusive acts of its supervisors, even if the employer did not know about them. Thus, in order to avoid liability, the employer must take an active approach to seek out and prevent this kind of abuse.
A hostile work environment, on the other hand, requires no supervisor-employee relationship. It can be the result of anyone entering the workplace: another employee, a visitor, a volunteer, or even a member of the church or organization. An employer is not automatically liable for sexual harassment by non-supervisory employees or non-employees. However, an employer will be held liable if it knew (or should have known) of the sexual harassment and did not take immediate and appropriate corrective action. 29 C.F.R. 1604.11(d)–(e) (2018).
How can churches and nonprofits respond to these potential problems?
Step 1: Create a Strong Policy Regarding Sexual Harassment.
The first step is to have a strong comprehensive policy for sexual harassment that is known and accepted by all employees. It may be tempting to believe that something so serious could never occur in your own church or organization. Many may understandably feel reluctant to think in detail about how to handle something so unpleasant and something that they hope will never happen. Still, the best time to create a sexual harassment policy is well before one is needed. It is much easier to create a wise plan of action before the pressures, emotions, and relational complexities among the people in your organization arise in a moment of crisis.
Define Sexual Harassment
Because harassment involves sexual or social advances that are unwelcome to the employee and to a reasonable person, the line is sometimes hard to draw between behavior that is inappropriate, foolish, or contrary to a mission’s aims and that which creates legal liability. Different people with different backgrounds and cultures may have sharply varying assumptions on what constitutes harassment. A clear, written sexual harassment policy, defining sexual harassment and giving examples of inappropriate behavior, will help to dispel any confusion in your work environment. It is also important to make clear that sexual harassment will not be tolerated and will be disciplined appropriately, including by termination if necessary.
Further, a church or nonprofit may find certain behavior unacceptable, even if it is not illegal. For those situations, it may be helpful to create a high standard for your organization and address indiscretions at that level, rather than awaiting misdeeds that are also a violation of law. In fact, the unique nature of churches and ministries allows them to enforce moral standards in accordance with their religious convictions, to a greater extent than other organizations can.
Training and Expectations
Once the policy is written, it is important that the employees understand the policy and are trained in how to handle sexual harassment allegations. Developing a clear understanding of expectations and procedures could prove pivotal in the event of a crisis, or even better yet, it may avoid one altogether. Retaining experts to conduct training on sexual harassment online or in person may be a life saver and even build the trust and transparency within the organization. Who they report such allegations to will be an important component.
No policy can provide every detail in advance, but some crucial details to be included in any successful policy will be how to receive complaints (preferably in writing), who will receive the complaints, who will be notified in the event of a complaint, and who decides what type of investigation to conduct. It is also important to warn employees that violations of this policy can result in discipline, up to and including termination. Further, it is important to develop standards regarding the timeliness of the alleged offense. It is always easier to investigate situations closer to the time in which they occur. “Historical investigations” into alleged misconduct occurring in the distant past invite a multitude of problems.
While there are some common elements to a successful sexual harassment policy, this policy will need to be tailored to the specific needs of the church or nonprofit upon the consultation of legal counsel. For more information on creating sexual harassment policies feel free to contact our office to schedule a consultation.
Step 2: Receiving a Complaint
The policy should require that sexual harassment complaints be in writing. This aids the investigators and serves to preserve the memory of details that would otherwise become hazy with time. It also serves to confirm or dispel the alleged offender’s inevitable response that the complainant’s story has changed.
However, organizations must be vigilant to understand when complaints are being made informally and direct this situation into the proper channels. For instance, if an employer is made aware of sexual harassment through informal conversation with an employee or observes this behavior directly, the employer should begin to take action. If no action is taken, courts will likely find that the employer “knew or should have known” about the problem and may impose liability on the employer. In such a situation the employer should probably respond by seeking to establish a formal complaint and have the known victims or witnesses to record their accounts in writing. Likewise, if you have sexual harassment policies and the employee/victim does not report, then the organization will have a first line of defense for the failure to report.
In any event, it is important that the organization treat the complainant and all parties with respect. Do not blow off the report as insignificant or treat the complainant as a nuisance. While it is too early in the process to promise a result (dismissal or exoneration of the alleged offender, etc.) it is important that you take this matter seriously and assure the complainant that a full and fair investigation will be undertaken.
After the complaint is received, the organization may need to do an initial evaluation to determine the scope of the investigation and see if there are any interim remedial steps that need to occur pending the investigation. For instance, it is generally inappropriate to have the alleged offender continue to maintain direct oversight over the complainant. In fact, it may be wise if probable cause exists to believe that it may have occurred to put the alleged offender on paid administrative leave pending the results of the investigation. Nevertheless, it is important that the remedial steps are not, and cannot be seen as, retaliatory measures against the complaining employee nor allow employees to use complaints against others to retaliate or punish supervisors. Fairness and respect to both alleged victim and alleged perpetrator must be the watchword to build trust and transparency on all levels.
Step 3: Conducting the Investigation
The initial evaluation will need to consider whether to conduct the investigation internally (by someone inside of the organization) or to get an independent investigator. Some complaints of minor misconduct may be sufficiently addressed by an internal investigation. However, an independent investigator can help to avoid any bias based on relationships existing among the members of the church or ministry and, even if no bias would impact the internal investigation, an independent investigator bolsters the credibility of the investigation, as there will not be even the appearance of bias.
An independent investigation by legal counsel experienced in sexual harassment complaints is prudent if there is a chance that the issue may result in a lawsuit or legal liability. Further, communications with legal counsel regarding the matter will be protected by attorney-client privilege. Whether the investigation exonerates or finds wrongdoing on the part of the alleged offender, the stakes are high. Liability can result both in failing to protect a victim or defaming someone who was innocent. Further, while a thorough investigation made in good faith can prevent the employer from being held legally responsible for the acts of the offender, a poor investigation can leave the organization on the hook. In some states, an employer with good intentions even can be liable for the malicious acts of its employees, if the employer conducts a negligent investigation and takes disciplinary action on that errant basis. See Vasquez v. Empress Ambulance Serv., 835 F.3d 267, 269 (2d Cir. 2016).
Some law firms, including Simms Showers, or outside companies, specialize in conducting sexual harassment investigations. However, if it is not a law firm, you will not have the benefit of attorney-client privilege in conducting a wise and thorough investigation. Further, some third-party investigation firms have endlessly investigated nonprofits, needlessly expending ministry resources and taking months, if not years, to conclude. This puts the nonprofit in the difficult position of deciding whether to continue the investigation until its resources are exhausted or fire the investigators, which to bystanders will appear to be an attempted cover up and breach of trust. Moreover, the alleged victims and perpetrators are left in limbo, so speed can be as important as completion in any sexual harassment investigation. Do not allow alleged victims or outside victim advocacy groups to pressure the organization through social media or otherwise into conducting a one-sided investigation or into hiring an investigator who is not objective and trying to find the truth regardless where it leads.
If the employer avoids these potential pitfalls, conducts an appropriate investigation, and takes reasonable action as a result of its findings, it can be considered “immediate and appropriate action,” which acts to shield the employer from liability in some cases. Even more importantly, it is the right way to prevent further damage and build trust within the church or nonprofit.
Step 4: Result of the Investigation
As a result of the investigation the employer must take reasonable action. However, what level of proof should be considered and established in the policy beforehand, since proof beyond a reasonable doubt is much harder to establish than proof by preponderance of the evidence (more likely than not to have occurred). Generally, organizations choose preponderance of the evidence as the evidentiary standard upon which the facts will be viewed since that is the standard used in civil courts on these types of cases.
If the findings show the offender is guilty of serious wrongdoing, formal discipline or potentially termination is warranted. If termination is contemplated, however, it is important that the employee had notice that sexual misconduct could lead to that result. This means it is essential that your sexual harassment policy is in place and acknowledged by all employees. Be aware that some particularly egregious behavior, such as sexual abuse of a child, may be subject to mandatory reporting laws. Of course, if the investigation does not reveal that sexual harassment occurred, then it should also be reported to all involved; however, it is important not to discourage other sexual harassment complaints if more evidence come to light.
Step 5: Follow up
Just because the investigation is concluded and, if warranted, an appropriate measure of discipline is applied, does not mean that everything goes back to the way it was previously. It is important that the employer does not allow any retaliation against the complainant for making a good faith complaint. It would be wise for the employer to periodically check in with the alleged victim to ensure that the situation improves, and no retaliation occurs. If the offender was disciplined short of termination and warned not to repeat his behavior, ensure that the offender complies. However, if the alleged victim was using the sexual harassment allegation as a tool to distract from poor performance or settle a score, it is just as important to address that issue for fairness and transparency.
Further, it will be important to document the steps that you took during the investigation and the result of it. Usually, the best practice is to prepare a short, written report. If you have hired legal counsel to assist in this matter, this document can be protected as attorney work product, except for the conclusions and discipline.
Step 6: Communication with Stakeholders
This step is increasingly important since employers are more highly scrutinized by the public eye in this expanding social media and MeToo culture. Honesty, trust, and transparency are virtues, but so is discretion. There is no requirement that all information must be revealed to the public and all parties. In fact, doing so could destroy attorney-client privilege, result in defamation lawsuits, and start or exacerbate a negative public relations war. Do not give in to public pressure or social media in communicating something that you will later regret. Be wise in the dissemination of information and/or statements made to the public (social media included). This step is another critical juncture to seek out legal counsel as the best course of action will vary greatly based on the specific situation. Typically, the final report containing the full findings of the investigation is kept by the employer and the parties are only given a written summary of the findings and results. If appropriate, another statement can be issued to the church or others who may have reason to know. Public statements are particularly problematic since potential defamation, intentional infliction of emotional distress, and other causes of action may flow from thoughtless and unwise release of information. However, telling the truth is also important but do it wisely and with counsel from experienced professionals.
Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers, LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers, Esq. at firstname.lastname@example.org or Will Thetford, Esq. at email@example.com for legal advice that will meet your specific need or to set up a consultation. You can also contact them for conducting sexual harassment training and /or investigations.
 Richard R. Hammar, Creating Sexual Harassment Policies for Church Workplaces, Church Law & Tax Report, Mar-Apr. 2018, https://www.churchlawandtax.com/cltr/2018/march-april-2018/creating-sexual-harassment-policies-for-church-workplaces.html.
 The Supreme Court has held that “a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
 For more information on creating employee handbooks, including sexual harassment provisions see https://www.simmsshowerslaw.com/employment-handbooks-dos-donts/.
 Richard R. Hammar, Creating Sexual Harassment Policies for Church Workplaces.
 Creating a Safe Culture: Making Sure #MeToo Does Not Happen at Your Church or Nonprofit, Webinar PowerPoint Presentation, Apr. 12, 2018, 26.
 Reporting Child Abuse: What is Your Duty, Simms Showers LLP, https://www.simmsshowerslaw.com/reporting-child-abuse-what-is-your-duty/.
 Richard R. Hammar, Creating Sexual Harassment Policies for Church Workplaces.