June 26, 2019
by John Kaempf

5 Tips To Reduce The Risk Of Legal Liability Against Your Church Or Religious School

 1. If you help operate a church or religious school, the safety of children is your first concern. Over the last decade, about 75% of churches and religious schools that got sued did so because of child safety issues. Churches and schools have a legal duty to protect children in their care from reasonably foreseeable risks of harm.

So, churches and religious schools need to engage in due diligence when selecting staff and volunteers to work with children. This should include conducting background checks and requesting references.

Make sure all employees and volunteers receive basic first aid training. Confirm that your facilities are free of tripping hazards. Keep sharp objects and dangerous chemicals away from the reach of children. Make sure doors are locked when rooms are not being used. Confirm there is adequate lighting inside and outside your buildings.

Avoid one employee or volunteer being alone with one child. A “two deep” policy should always be followed. It means that at least two adults are present in the room when only one child is present. Thus, for example, one teacher can be alone with a group of students, but one adult should never be alone with just one child. This policy is for the protection of (a) the children, (b) the church or school, and (c) the adult.

The Boy Scouts of America “BSA” follows the “two deep” policy. It states that “at least two adults are required on every BSA outing. During that outing, there should be no one-on-one contact between an adult and a youth. There might be moments when just one leader is present with two or more Scouts. That’s fine, as long as the situation doesn’t involve one adult and one youth.”

Also, there should be training related to appropriate interaction with students and church members. It should include guidelines regarding dealings with students in person, through smartphones, and on social media. Text messages are the primary way teenagers and many adults now communicate. Ministry leaders should be warned against sending improper images from smartphones. They should inform youth group members of the dangers of “sexting.” Even minors can be charged with a sex crime for transmitting sexually suggestive photos. Encourage ministry youth workers to send text messages and emails to a group rather than to individuals.

2. Sexual harassment training for all employees related to how they interact with each other should occur. Consult an attorney about proper training.

3. Review and update your bylaws.

A legal advocacy group for religious organizations, recommends church bylaws address the following:

Have a formal process by which congregants become members. Churches enjoy substantial freedom under the U.S. Constitution to govern themselves as they see fit. But only those “who unite themselves” in a religious association consent to its authority over them and are “bound to submit to it.” So, for a church to claim immunity against a possible wrongful act, the alleged victim must be or have been a formal member. Churches are afforded wide latitude when they impose discipline on current or former members. But this is difficult to establish in court if the church does not have a formal membership policy.

Include a statement of faith about marriage, gender, and sexuality in your bylaws. Churches should include in their bylaws a Biblical definition of marriage, and a statement that marriage is the only legitimate and accepted sexual relationship. This will help protect a church if it is forced to terminate or discipline an employee or member for engaging in unbiblical sexual relationships.

To help avoid disputes, a church should have each step of its procedure for discipline and membership termination explained in its bylaws. If a church decides to reveal to the congregation the reason for the discipline or termination of a member, which is not required, it is critical that this be a part of that written procedure. This will help reduce liability for supposed defamation of an expelled or disciplined church member.

As part of the process for becoming a member, a church should provide all prospective members a copy of the bylaws, and have them sign a statement that they have read and agree to abide by them.

Require all employees to sign a document affirming your statement of faith contained in your employee manual. Put job descriptions and religious grounds for termination in your bylaws.

Federal law prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. But it exempts religious organizations and allows them to consider an applicant’s religious beliefs in hiring for all positions. For hiring clergy, none of the federal nondiscrimination regulations apply.

If these steps are followed, courts are much more likely to dismiss a claim against a church or religious school by a member or employee because it relates to its internal discipline process. Having these bylaws also establishes that there is a religious basis for a church or school’s limitations on employment or membership. That is unlikely to be questioned by a court because it is protected by the right to freely exercise religion contained in the First Amendment to the U.S. Constitution.

A simple facility use policy in your bylaws should state that your church or school restricts the use of its facilities to events that are consistent with its beliefs. For example, a church may decline to make its facilities or ministers available for any wedding if it is determined that one or both of the parties are not biblically qualified to marry. Do not overreact by prohibiting all outside groups from using your facilities, which limits a church’s ability to serve the community.

4. Maintain adequate insurance coverage. Periodically consult an insurance agent or attorney who is knowledgeable about insurance and liability issues to review your coverage. Confirm whether your church or school is covered in the event of a claim of clergy malpractice, such as an inappropriate sexual relationship arising from counseling. Also confirm whether you have coverage for a child sex abuse claim, which, unfortunately, too often occurs.

Also, some insurers now offer religious freedom protection coverage. When making decisions and creating employment policies, churches and religious schools have freedoms that other organizations do not. Such coverage can allow religious organizations to minister to everyone, stay true to their sincerely held beliefs, follow the law, and avoid direct financial liability.

5. Finally, if a legal dispute arises, see if there are additional protections for your church or school in your state’s laws. Many religious institutions are familiar with their federal First Amendment right to freely exercise their religion without undue governmental interference, and related protections under federal law. But state laws can provide additional protection, and an attorney should examine this issue. For example, even in Oregon, not a church-friendly place, Oregon Revised Statutes 659A.006(4) states that “it is not an unlawful employment practice for a bona fide church or other religious institution to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if the religious sect or persuasion to which the employee or applicant belongs is the same as that of the church or institution.” Also, Oregon Revised Statutes 659A.006(5) provides that “it is not an unlawful employment practice for a bona fide church or other religious institution to take any employment action based on a bona fide religious belief about sexual orientation in employment positions directly related to the operation of a church or other place of worship.”