Be Proactive to Minimize the Risk of Sexual Harassment Charges

By David O. Middlebrook, esq.

Most employers are well aware of the public's elevated awareness of sexual harassment in the workplace as evidenced by the ever-rising number of claims filed against employers. Contrary to expectations, our experience reveals that churches, as employers, generally do not enjoy a workplace less prone to these claims, though most churches assume that their adherence to biblical doctrines would preclude harassing behavior.

Your church, especially if it has never faced a sexual harassment claim, should be aware of important developments in the law that can provide a measure of protection in the unfortunate event a claim is leveled by one of your employees.

Specifically, the holdings of two recent U.S. Supreme Court cases have set forth an affirmative defense for employers in defending a sexual harassment claim. However, to take full advantage of the newly recognized defenses, you must take certain preventive steps before, not after, your church is named in an accusation of harassment.

The affirmative defense insulates employers from liability or damages in cases where sexual harassment occurred but no tangible negative employment action was taken against the employee, such as discharge, demotion or reassignment. To claim protection, the employer must show that prior to the claim, the employer had taken reasonable care to prevent harassing behavior; that the employer, once aware, acted promptly to correct such behavior; and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

Adopt "zero tolerance"

Clearly the potential benefit your church could receive from this affirmative defense turns on the degree to which you have established an anti-harassment policy before the claim arises. When implementing your policy, we recommend adopting a "zero tolerance" plan with at least each of these features:

1. easy to comprehend illustrations of harassing behavior,
2. the church's policy statement against all such conduct,
3. a reporting procedure that allows the employee to bypass a harassing supervisor,
4. a procedure for the anti-harassment policy to be explained and distributed to all employees,
5. training for managers to recognize and report wrongful conduct,
6. mandatory monitoring of supervisors by top management, and
7. a plan for prompt corrective action in the event of an allegation.

As yours is a religious organization, consider holding your employees accountable to a more rigorous standard of conduct than the minimum prescribed by law. The biblical tenets governing your organization do preclude the behavior that constitutes harassment. Therefore, in addition to setting forth a legally adequate anti-harassment plan, also stipulate that failure to abide by the organization's code of Christian conduct, or tenets of faith, constitutes grounds for discipline up to and including termination.

When you have determined that an employee has engaged in conduct that violates your church's policy, react promptly and firmly. Employers often hesitate to discipline an employee absent evidence that establishes that misconduct occurred "beyond a reasonable doubt." This is not the standard upon which disciplinary decisions are to be based. Rather you may take any employee action you deem appropriate based on your good faith understanding and belief of the facts. Moreover, if you wait until the "criminal law" standard is met before taking action, your organization may be passively promoting the type of repeated offenses that lead to civil liability.

As a final suggestion, be sure that no employees are ever led to believe that management does not want to hear about personnel problems or that all differences should be worked out internally between the parties involved. The key to defending sexual harassment claims is the maintenance of an open, "transparent" work place where management seeks to know more, not less, about the inner workings of the organization.

David O. Middlebrook is a partner in the law firm of Brewer, Brewer, Anthony & Middlebrook in Irving, Texas. His practice includes advising clients on legal questions relating to general corporate and business matters with a special emphasis on legal issues affecting non-profit organizations, including churches, evangelistic associations and para-church ministries.