Case Exposes 12 Reasons to Have an Adequate Investigative Process

Recently, a court has allowed to go forward most of a case against the Roman Catholic Archbishop of San Francisco.¹ The court did not allow the Archdiocese to claim religious law protections.

The case alleges that a female teacher was sexually harassed by students at a Catholic boys’ high school. The teacher taught biology and also was involved in campus ministry. Supposedly, the all-boys school had a long history of sexual harassment of women teachers, including taking up-skirt photos, graphic cell phone messages, threatening phone calls, and other inappropriate actions. These actions involved the plaintiff and other female teachers.

The case alleges that the school did not investigate sufficiently, including: did not contact police soon enough; did not seriously address offensive and sexually violate graffiti; did not deal sufficiently with student sexual references on social media (made them take it down and suspended them but did not determine if language was widespread); did not sufficiently question or examine students related to the upskirt photos incident (specifically, allowing students to delete photos or deny having photos and failing to order a forensic electronic investigation); possibly deleted or encouraged students to delete upskirt photos or videos; and inadequately investigated an upskirt photo competition.

The schools actually disciplined some students, but the question was whether it really dealt with widespread harassment. An expert report highlighted problems with investigations, including: violations of confidentiality; not properly interviewing witnesses; failing to corroborate allegations; failing to perceive patterns of misconduct; interviewing students over the phone; and failing to remember crucial details of the investigation.

The court refused to apply the ministerial exception defense at this stage, because there were disputed issues of fact about whether the teacher was a minister. The court also refused to apply First Amendment protections, since the claims were purely secular. The court did not find any formal religious decision-making process.

Although there was a dispute resolution agreement between the teacher and school, it did not contain a clear waiver of the right to bring a lawsuit, so the court refused to enforce it.

Overall, the court is allowing the case to go forward. This doesn’t mean that the plaintiff will win, but does mean that the Archdiocese has to keep litigating.

Twelve Lessons Can Be Learned Here:

1. If there could be a crime, work with the authorities where appropriate. It is better to err on the side of taking allegations too seriously than not seriously enough.

2. The appearance of lying or destroying evidence should trigger further investigation of the individuals who have done (or may have done) that.

3. Avoid any appearance of encouraging anyone to destroy evidence.

4. Investigations should guard confidentiality appropriately.

5. If there is good indication that witnesses might have information, they should be interviewed, especially in cases that allege widespread wrongdoing.

6. Avoid phone interviews, which are not ideal, particularly for important witnesses.

7. Keep track of the details of the investigation, being thorough in both investigations and in record-keeping.

8. If personnel are not trained to do investigations professionally, consider bringing in an outside investigator.

9. Where electronic data is involved, use professional forensic analysis.

10. Draft job descriptions that carefully define who is a minister.

11. Define the religious grounding for your decision-making process and/or appeal.

12. Draft dispute resolution agreements that are specific in waiving lawsuits, and make sure personnel specifically read and agree to them.

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1. Bohnert v. Roman Catholic Archbishop of San Francisco, No. 14-cv-02854 (N.D. Cal. Sep. 25, 2015).