Allowing Suits Against Churches for Sexual Harassment

Rick's post about the the Ninth Circuit's decision in Elvig vs. Calvin Presbyterian, which holds that a suit for damages may be brought against a church for sexual harassment committed by a pastor/supervisor to a minister, quotes the dissent position that the decision is "an invasion by the federal government into the church's core prerogatives and autonomy.''

I disagree with the position that the availability for damages for harassment is an impermissible interference with the church's constitutionally protected decisions to hire and retain ministers.  It is one thing to say that a church may engage in what would otherwise be termed employment discrimination in hiring its ministers.  It is another to suggest that respect for religious freedom requires protecting the ability of pastors to sexually harass those employees they choose to hire.  If the pastor had physically assaulted the minister, would anyone think it inappropriate if the minister sued for damages to compensate for those injuries?  (The court in this case was clear that there could be no damages for the resulting termination of employment of the harassed employee, only for the harassment itself.)

Dissenting from the Ninth Circuit's decision not to rehear the case en banc, Judge Kleinfeld argued that the availability of damages for sexual harassment necessarily interferes with hiring decisions becuase "to prevent lawsuits alleging sexual harassment, churches will fire ministers who they think expose them to risk of damage awards and hire those who they think will not."  I'm not entirely sure how one determines whether a potential employee is likely to expose the church to damage awards, but unless a church is trying to preserve its ability to engage in sexual harassment of its employees, it is difficult for me to see the danger here.

  As the Ninth Circuit said in denying a rehearing en banc, there was no allegation by the church that that there was a religious justification for the sexual harassment.  Thus the court did not address the question left open in its prior decisions concerning whether sexual harassment based on a religious justification was constitutionally protected.

Susan