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Response to
The Genealogy of Sexual Harassment
Policies
Anne, I'm surprised that the
First Amendment is considered
to prohibit "the application
of Title VII in some religious
institutions to clergy both as
victims and perpetrators." You
further mention that "The
First Amendment to the U.S. Constitution
has been construed to prohibit
courts from intervening in allegations
of behavior by or against clergy
in some religious institutions
which would otherwise violate
sex discrimination [including
sexual harassment] laws." How
can sex discrimination laws be
considered to include sexual
harassment? Discrimination
refers to disparate treatment
based on gender; surely the theory
of harassment is not that the
behavior would be acceptable
if the perpetrator was gender-neutral
in his/her harassment? Church-state
relations are such an amazing
patchwork of conflicting theories,
with courts removing themselves
from perfectly reasonable involvements
such as sexual harassment, in
this case, while other courts
in church property disputes involve
themselves in understanding (or
imposing their views on) a church's
polity and even theology in order
to make some kind of resolution.
Jackson H. Day, M.Div, MPH
Pastor, Grace United Methodist
Church
Upperco, Maryland
Consultant, Health Care Advocacy
United Methodist General Board
of Church and Society
Washington, D. C.
EthicsWalk:
The Genealogy of Sexual Harassment
Policies
Today, most adults in the United States know the term “sexual harassment.”
Educational institutions, government agencies, most work places and religious
judicatories have policies about sexual harassment. Both the term and policies
are phenomena of the past two decades.
Why the recent focus? Seeking
to fulfill sexual desire in places
of work, education or worship is
not new. Three thousand years ago
the prophet Nathan rebuked David
for fulfilling his lust with the
wife of a soldier and then using
kingly power to order the man killed
in battle. (2Sam. 11-12) And, American
religious history is replete with
stories of clergy-congregant sexual
liaisons.
But the term “sexual indiscretions”
described, and often excused, such
behavior. Male religious and political
leaders were seen either as “entitled”
to sexual prerogatives or were
pitied as victims of female temptresses
within their communities.
In the last twenty years a new
perspective has challenged these
liaisons. Leadership entitlement
(the King David Syndrome) and male
vulnerability (the Potipher’s Wife
Trap, Gen.39) are no longer assumed.
An increasingly diverse work force
has prompted most men and women
to view such behavior as harmful.
“Sexual harassment”
first achieved recognition as a
tort (wrong) at
civil law in 1986. A feminist legal
scholar, Catherine MacKinnon, coined
the term and brought the first
case to reach the United States
Supreme Court. [1]
The Court gave three guidelines
for determining if a sexual liaison
in the work place constitutes harassment.
First, a voluntary liaison (no
gun held to one’s head, no threat
of economic loss or loss of status)
does not automatically create a
“welcome” liaison. It must be shown
that the relationship was welcomed
by both parties. If it was not,
it could be harassment.
Secondly, when determining if
the liaison was welcome, the fact-finder
must look to the impact of the
alleged behavior on the alleged
victim, not the intent of the accused.
This turns upside down traditional
analysis in criminal and tort law
where the mens rea (mind-set) of
the accused is the focus, usually
to the exclusion of a victim’s
experience.
Thirdly, the Court said that when
there is an imbalance of power,
consent to a voluntary liaison
cannot be assumed. Consent is a
matter of fact to be determined
at trial.
Each guideline confirms the mandate
of many faith groups to heed the
voice of the most vulnerable; to
honor the perspective of the one
with lesser power.
These guidelines
shape prohibitions and policies
regarding sexual conduct
in the work place and educational
institutions. [2] They also inform
the policies and procedures of
most faith groups and chaplaincy
associations. Policies address
everything from
rape and
assault to unwanted touching, unwelcome
attentions, jokes, and language
that is derogatory and/or sexually
explicit.[3]
Respect for persons and justice
in relationships are the manifest
ethical principles. The First Amendment
to the U.S. Constitution prohibits
the application of Title VII in
some religious institutions to
clergy both as victims and perpetrators.
(The First Amendment to the U.S.
Constitution has been construed
to prohibit courts from intervening
in allegations of behavior by or
against clergy in some religious
institutions which would otherwise
violate sex discrimination [including
sexual harassment] laws.)
I encourage you to respond to
this column.
The next EthicsWalk will consider
why religious bodies must address
formally sexual harassment in their
places of worship, work and education.
[1] Meritor Savings Bank
v. Vinson, 477 U.S. 57
(1986) A bank teller terminated
a lengthy sexual relationship
with her supervisor, After
being fired, she sued the bank
claiming the relationship was
not consensual and that she
had felt harassed by the supervisor’s
attentions. The Court ruled
that harassment based on gender
constitutes sex discrimination,
prohibited by Title VII of
the Civil rights Act of 1967
as amended, and that an employer
could be found liable for the
conduct of its supervisory
employees.
[2] The same rules and analysis
have been upheld by the U.S.
Supreme Court as applying to
sexual conduct between students
and teachers through Title IX
of the Education Amendments Act
of 1972 which prohibits sex discrimination
in educational institutions.
[3] Most policies incorporate
the E.E.O.C. statement: “Unwelcome
sexual advances requests for
sexual favors, and other verbal
or physical conduct of sexual
nature constitutes 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 an 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.”29CRF 1604.11.
Educational institutions add “educational”to
employment situations.
Anne Underwood
has an undergraduate degree in
religious studies, a master’s degree
in rural sociology and a mid-life
law degree obtained after working
over a decade as a college administrator.
She has mediated for the Maine
family courts since 1983. Currently
she serves as an advisor to the
ethics commissions of ACPE, APC,
the CCAR (Central Conference of
American Rabbis), and NAJC, and
consults with a variety of Protestant
faith communities on issues of
power, fair process, and congregational
conflict management. Her articles
on mediation and restorative justice
have appeared in the ACPE News,
The APC News and on the ACPE web
cite. Articles on clergy accountability
and judicatory processes are published
by the Alban Institute and The
Journal on Religion and Abuse.
A chapter, “Clergy Sexual Misconduct:
A Justice Issue,” appears in Body
and Soul: Rethinking Sexuality
as Justice-Love, Marvin Ellison
and Sylvia Thorson-Smith, editors,
The Pilgrim Press, 2003.
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