A white paper by Theresa Lynn Sidebotham, Esq. about what a good investigative process should look like within a religious organization.

White Paper

Misconduct Investigations: Principles Specifically for Religious Organizations

Theresa Lynn Sidebotham, Esq.

tls@telioslaw.com
19925 Monument Hill Rd. | Monument, CO 80132
ph. 855-748-4201 | f. 775-248-8147

Table of Contents

• Executive Summary
• I. Certain Principles and Protections May Apply to Religious or Faith-Based Organizations
• II. Religious Organizations Can Create Certain Hiring and Conduct Principles
• III. Reasons to Conduct an Investigation that May Lead to Discipline
• IV. Implications of International Law for Investigations and Termination
• V. Keeping an Investigation Legal and Following Best Practices
• Conclusion

Executive Summary

Religious organizations have certain freedom to set standards of conduct, and also to follow an investigative and disciplinary process when these standards are violated. Many things must be considered first, such as creating good documents and a good investigative process, and being aware of international law principles. This memorandum covers the following topics.

Certain Principles and Protections May Apply to Religious or Faith-Based Organizations

• Courts usually will not interfere with religious organizations on decisions that involve the organizations’ theological principles.
• Relious organizations can hire people who share their beliefs and promote a religious culture, sometimes even when certain anti-discrimination laws would otherwise apply.
• Religious organizations can impose Bona Fide Occupational Qualifications (BFOQ) with more freedom because of their religious beliefs.
• A religious organization has almost complete control over the hiring and firing of ministerial employees, which includes a broad range of people.

Religious Organizations Can Create Certain Hiring and Conduct Principles

Religious organizations can enforce conduct in the following ways:

• Provide conduct policies grounded in doctrine or reasonable practical principles;
• Have both religious and secular employees sign off on religious and moral conduct policies and waive the application of secular law;
• Identify professionals who are ministerial employees, with spiritual requirements;
• Have employment handbooks and contracts that enforce religious principles and behavioral standards;
• Have employees agree that certain notifications will happen in case of moral failure.

Reasons to Conduct an Investigation that May Lead to Discipline

The following allegations mean the mission can and should conduct an investigation:

• Safety issues for personnel;
• Safety issues for those for whom the mission has some responsibility, like MKs;
• Actions that affect the public reputation of the mission;
• Criminal or illegal activity, whether under the laws of the home jurisdiction, or local or national laws;
• Harassment, bullying, or discrimination, whether on or off the job, because of the close-knit expatriate community;
• Actions that affect the ability of the person to perform the job;
• Personal problems that affect a person’s work;
• Behavior that creates legal liability for the organization.

Implications of International Law for Investigations and Termination

• Be aware of the requirements of local law.
• Not all countries have employment at-will, and some have different legal standards to terminate.
• An investigation must take into account relevant law on whistleblowers, data protection and privacy laws.
• Written codes of conduct will be an advantage in most legal jurisdictions.

Keeping an Investigation Legal and Following Best Practices

• Serious misconduct can usually trigger investigation and, if true, discipline.
• An investigation is easier with Scriptural principles and contracts in place.
• Implement due process, which should include the following steps:
  • Establish policy;
  • Investigation on violation of policy;
  • Decisions regarding discipline;
  • Procedure available to appeal decision;
  • Carrying out separation from the organization;
• Statements about discipline should be made in compliance with legal principles and contractual agreements.

Introduction

Employment in a mission organization raises some boundary questions. In these days of rapid international travel, we have the fluidity of “where” we are working. In addition, we have the fluidity of “when” we are working. Is it a 40-hour work week? Are we on-duty all the time? Are we accountable all the time?

These questions become particularly important when organizations face investigations into misconduct. Does it matter “where” the alleged misconduct occurred? Does it matter “when” the alleged misconduct occurred? What about the “private” life of the missionary? Is that any of the mission’s business? What about the mission’s children (MKs)? Is family life separate from a person’s missionary life? Can an organization place expectations on family life? What are our obligations to them?

This memorandum outlines some of the parameters for misconduct investigations in an international or multinational setting, specifically for a religious organization. It considers how a religious organization is different, how religious employees are different, issues related to conduct policies, implications of misconduct outside of “work,” behavior that might justify significant discipline, implications of international law, and some points about the overall HR process.

These principles are derived extensively from U.S. law, with some reference to international jurisdictions. Some may ask why this approach so U.S.-centric, when most mission activity is not in the U.S., and indeed, missions-sending is increasingly from other countries.

The first reason is that in an investigation, usually more than one set of laws will apply. If the employee is a U.S. citizen, hired by a U.S.-based mission, then much of U.S. law will still apply even overseas—and local law may apply as well. Since many large missions are still U.S.-based, it is worth being aware of the existence of U.S. religious and employment law. The majority of expatriate missionaries are still from the U.S. Missions should carry out research applicable to expatriate members from other countries.

The second reason is that U.S. religious law is highly developed, and gives much more protection to religious organizations than equivalent secular laws. It is, in fact, an entire legal framework that overlays secular law for religious organizations. Analogous laws, or at least arguments, may exist in other jurisdictions, so it is good to be aware of U.S. religious law as a starting point for research into the pertinent law of the applicable jurisdiction for your sending country and for where the work is being carried out.

This memorandum addresses all misconduct investigations, and highlights the reality that a child protection investigation is a type of employment investigation. A child protection investigation may be more complex, more tragic, and more far-reaching—but from the mission’s point of view, it is still a subset of an HR employment investigation, and should be handled consistently with the organization’s overall HR approach.¹

I. Certain Principles and Protections May Apply to Religious or Faith-Based Organizations

Religious organizations in the United States (also known as religious institutions, faith-based organizations, religious nonprofits, or similar names) have very wide latitude to remove members or employees for doctrinal reasons. In other countries, other laws apply. There may be comparable legal principles, or at least the cases may provide an argument to be made. This will likely require legal research in the applicable jurisdiction.

A. General Independence of the Religious Organization

In the United States, courts generally take a “hands off” approach when dealing with religious organizations. A strong line of cases teaches that when decisions of religious organizations involve their theological principles, the courts will not intervene.² This is called the“church autonomy” doctrine. In short, the church is autonomous from the courts, and each has authority in its own sphere.

The religious organization in question need not be a church, but could be a school or other organization, such as a mission.³ First Amendment protection is available when a “religious organization” makes an “ecclesiastical decision.”⁴ The civil court usually cannot interfere with the internal governance of a religious organization, even to determine whether it complied with its own procedural rules.⁵ This is called “ecclesiastical abstention”—the court won’t make “church” decisions, so it abstains from the conflict.

The “ecclesiastical abstention” doctrine prevents secular courts from reviewing any disputes that would require an analysis of “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.”⁶ “In cases relying on the ecclesiastical abstention doctrine, courts first consider the substance and nature of the plaintiff’s claim—in other words, what is the claim about?— to determine whether the First Amendment prevents the court from considering it.”⁷

In one case, a minister of 22 years was accused of homosexual conduct.⁸ He was placed under church discipline, and various letters were written about him. A full investigation was carried out, and he did not like the result. He sued on a number of counts related to the disciplinary process. The court declined to become involved in the internal policy, administration, and disciplinary practice of the organization. Those who join a religious organization “do so with an implied consent to this government, and are bound to submit to it.”⁹

It is not proper for such individuals to appeal to secular courts to have these decisions reversed. Nor is it proper to have an investigation into whether the decisions of the religious organization are “arbitrary” or carried out correctly, such as when someone’s membership is terminated for adultery.¹⁰

This doctrine can apply to various moral violations. For instance, one Catholic teacher was terminated for being sexually involved with a married man with three children in the schools. The court held that her adulterous relationship was inconsistent with the standards of the church, which were set out in her employment contract with the school.¹¹

B. Defense to Anti-Discrimination Laws

Under Title VII, the main U.S. equal employment opportunity law, and U.S. constitutional law, religious organizations are permitted to hire people who share their religious beliefs.¹² This is a general religious employers’ exemption that allows religious organizations to establish employment policies that guard the religious identity of their organizations and create a religious culture within the organization.

This exception may be critical if anti-discrimination laws conflict with the religious organization’s beliefs, such as in the instance of a homosexual lifestyle. In one case, brought as a racial discrimination case, but really about promoting a lesbian lifestyle, a student services specialist at a religious college was dismissed. The school’s mission statement was to “the threefold ministry of Christ—preaching, teaching and healing.”¹³ The student services specialist was responsible to work with student ministries. The woman was a lesbian and had been ordained at a church supporting the homosexual lifestyle. She was terminated because her beliefs were inconsistent with the religious organization’s beliefs. The court evaluated the circumstances and decided that the school was a religious educational institution with sufficiently strong ties to the Southern Baptist Convention. Thus, it had the right to terminate someone who assumed leadership in an organization with contrary religious views. The court upheld the organization’s right to dismiss the employee. Note that this is a fairly old case, and in today’s world, the religious organization’s position must be absolutely solid, because the court will not be inclined to a favorable interpretation for religious organizations when it comes to gay rights.

The religious exception can apply to disciplining conduct that might fall under disability discrimination, such as the Denver Seminary case where a student suffering from various mental disabilities was eventually dismissed.¹⁴

The exemption can apply even to secular activities of the church or religious organization.¹⁵ Employees of religious organizations engaged in some secular activities also fall under the exception.

The case for the religious institution to control conduct and beliefs of the employees must be made through the organization’s policies, creedal beliefs, or codes of conduct. To the extent that these policies do not implicate religious values, other Title VII anti-discrimination provisions, the Americans with Disabilities Act, and similar laws in other jurisdictions will still apply.

C. Bona Fide Occupational Qualifications (BFOQ)

Religious organizations may also determine the nature of the work sought by the religious organization. There could be particular religious qualifications for the job, which might include certain faith, training, or conduct requirements. In the U.S., Title VII makes an exemption for a bona fide occupational qualification (BFOQ).¹⁶ Local laws can be reviewed to see if similar exceptions are available.

A BFOQ requires the employer to define what is required to perform the duties of the job—these must relate to the “essence” or “central mission” of the business. This can include being a member of a particular faith or group, such as being a Jesuit in one case.¹⁷

While BFOQs are hard for secular organizations to assert, they make sense for religious organizations. A mission organization undoubtedly has many BFOQs for its missionaries, ranging from linguistics or medical qualifications to theological or Bible training or previous service in church leadership. These qualifications may affect even protected classes—such as a doctrinal position about women preaching, or a requirement that certain leadership positions be held by nationals. Jobs must be defined carefully to demonstrate any BFOQs that are religious in nature, or the court may decide that the job is purely secular in nature. If requirements are not worth putting in writing, they may not exist.

D. The Ministerial Exception and Hiring or Firing

This abstention by the courts in the United States goes even further in many cases. If the person in question is an employee in a ministerial position, the courts definitely lack subject matter jurisdiction under the “ecclesiastical abstention doctrine.”¹⁸ In other words, the “ministerial exception” is a subset of the “ecclesiastical abstention” doctrine previously discussed.

The ministerial exception doctrine was developed in a case against the Salvation Army, where a female officer was terminated. She filed an Equal Employment Opportunity Commission sex discrimination case.¹⁹ The court decided that, while the sex discrimination provisions of Title VII generally would apply in a situation like this, they could not apply to a ministerial relationship: “The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose.”²⁰

The ministerial exception has recently been strongly affirmed by the U.S. Supreme Court.²¹ It applies not only to churches, but also to religious schools and other religious organizations.

Who is a “minister” is defined quite broadly. Persons fit the ministerial exception if their primary functions serve the spiritual and pastoral mission of the organization, whether or not they are ordained. This doctrine does not refer only to someone who is ordained, or to someone who is a pastor. Teachers, music ministers, youth pastors, and others have been found to be ministers. The key is whether the person is in a role that fulfills a specific spiritual purpose. Evangelism, creating religious materials, teaching, service ministry such as medical missions, and others can and should all fit within the ministerial role.

As a general rule, most missionaries would fit the ministerial exception, and it would be the rare employee where the mission would say that the person does not further its religious purposes. Persons would not be included under this exception if their positions were purely custodial or administrative, with no spiritual function.²² The mission should consider what jobs would have no spiritual function!

In the U.S., the mission would have complete freedom to make employment decisions about ministerial employees. Though “minister” is broadly defined, as discussed above, Title VII and similar laws apply where the person is not a “minister.”²³ Other jurisdictions may recognize ministerial employees differently, but may have some way of acknowledging that a religious organization chooses its pastors and ministers.

Again, if the mission does not take the trouble to define the spiritual functions of the jobs, or why a particular job involves a spiritual and pastoral role, it may not be able to defend its position later.

II. Religious Organizations Can Create Certain Hiring and Conduct Principles

What conduct can be barred by a mission? How should it go about doing this? Conduct that is generally agreed by society to be criminal or morally wrong is easy to bar. More difficult is conduct that would not be prohibited by secular organizations. Most difficult is conduct that would be affirmatively embraced by secular organizations, such as homosexual relationships.

To the extent that conduct policies that govern conduct are grounded in religious beliefs, they are more likely to be enforceable in the U.S. This may be true to some extent in other countries as well. Note that, as long as the conduct policies are grounded in doctrine, reasonable practical principles, or both, they will likely extend into private life as well—especially for ministerial employees.

The organization can also take a contractual approach. Even for secular employees of religious organizations, courts “should enforce non-ministerially-functioning employees’ contractual waivers of the right to avail themselves of secular law.”²⁴ So if an employee signs off on policies that reflect the organization’s religious beliefs—such as moral conduct codes that govern public and private behavior—those should be enforceable.

The mission should carefully define all its religious roles in its job descriptions. Particularly for a job that may seem primarily secular, but still has important ministry aspects, those key ministry aspects must be spelled out. This makes it more likely that the court will agree that people are ministerial employees.

Both the handbook and job descriptions should be clear on the religious responsibilities of employees, and who is considered a ministerial employee. They can also clarify whether missionaries are professionals exempt from time-hour restrictions. Many missionaries are in a ministerial role, and even more would be considered professionals. So by and large, most missionaries do not fit an “hourly wage” employee paradigm.²⁵ This is important not only in considering wage-and-hours restrictions, but in making clear that a missionary is responsible for his or her testimony whether in public or in private life.

Even for ministerial employees, courts have held that it is possible to waive by contract the employer’s right to control a ministerial employee under religious principles.²⁶ This means that if the employment manual or employee contract or employee policies do not rely on and incorporate the organization’s religious principles, beliefs, and policies, the court might decide that the organization has bargained away its religious rights, and may apply purely secular principles even for a ministerial employee. Sometimes missions try to have an employee handbook that mirrors that of a secular corporation, and that is a big mistake. One caveat is that the handbook should include a statement that, where it conflicts with local law, local law governs.²⁷

The handbook and conduct policies should be clear on the religious beliefs of the organization; its mission, values, and vision; its moral conduct principles; and how the organization’s public image will be upheld. The doctrinal creeds, behavioral codes, employee handbook, job descriptions, child protection policies, etc. should all explain the religious perspective, and should all be consistent, solid, and interlocking.

It is much easier to assert against an employee a code of conduct that is in writing, and which the employee has signed. Then the documents become a contract, agreed to freely by those who are bound. These policies should also define what the mission considers “gross misconduct,” or behavior calling for termination, tailored to the business and religious principles of the mission, because that may become important later on. Moral conduct codes should also detail whether they apply to on-the-job behavior or all behavior. For example, alcohol might be prohibited on the job, while illegal drugs might be prohibited everywhere. Best practices would be to have employees sign the Code of Conduct before they enter a formal relationship with the organization.

The policies can even detail what the religious vision of the organization requires in terms of notification of other organizations in the case of serious moral failure. This will help to avoid allegations of defamation when someone’s sending church or future employer is notified of a child protection policy violation.

III. Reasons to Conduct an Investigation that May Lead to Discipline

It can be difficult to identify clearly what types of alleged misconduct are subject to an investigation and possible disciplinary action. Under a strict religious law situation in the U.S., discipline of employees can be very broad indeed. Under secular law, or in international settings, this analysis can be more difficult. Missions may be particularly worried about how to accomplish an investigation when the alleged misconduct appears to involve the person’s private life or to occur “off the job.” But certain concerns or allegations of misconduct are generally accepted in most employment situations as being reason for an employment investigation, whether they occur officially during work time or not.

Safety issues are the first general area of misconduct that can and should be investigated. Actions that make people feel unsafe at work (such as threats, sexual harassment, and inappropriate actions and communications outside of work) should be investigated.

Actions that may affect the safety of those for whom the mission has some responsibility create another area of investigation. It is widely understood that the mission has at least some responsibility for the wellbeing of missionary kids (MKs). They are on the field because of the work that their parents do with the mission. There is often broad intersection of their lives with those of other missionaries. The mission is involved with their education and health needs in a way that most employers are not. In addition, MKs may be in a situation where extended family or government cannot easily intervene when something is wrong. Thus, allegations that the safety of MKs is at risk, whether this occurs on mission property or in their own home, are subject to investigation. This would also be true for others in mission programs, such as national children.

Actions affecting the public reputation or the good name of the mission may require investigation. This could include areas of integrity (such as financial, or events that would implicate the U.S. Foreign Corrupt Practices Act or the U.K. Bribery Act). They could include violations of stated moral policies in the Code of Conduct, such as public drunkenness or public immorality. They could involve unwise public statements, such as offensive behavior, political statements, or comments that damage the organization. If the mission organization sponsors a person’s visa to serve outside their home country, the reputational aspect may be even more important.

Criminal or illegal activity will likely require investigation. It will certainly require investigation if the person has violated local or national laws. Even if the crime is not chargeable (or perhaps even known) in the country of residence, actions that are generally conceded to be criminal would be the proper subject of an employment investigation. Actions may be illegal under either local law (such as local criminal or employment law) or other applicable law. For instance, the laws of some countries, such as certain U.S. and U.K. laws, have extraterritorial effect (especially employment and bribery laws).

In most settings, harassment, bullying, or discrimination is the proper subject of investigation. This is true especially when it occurs on the job. Because the close personal as well as professional ties in the expatriate or missionary community, and the issue of public testimony, these allegations will be investigated even if they occur “off the job.” Areas of harassment and discrimination that are common in the U.S. (sexual harassment, disability harassment, racial discrimination, age discrimination, etc.) are also applicable in many other countries. Although the specific contour of the law varies from country to country, and should be analyzed in your investigation, the general concept may be well understood.

Behavior that affects the ability of the person to do the job may be subject to discipline. For instance, in secular settings, female teachers have been let go for posting topless photos of themselves. Even though the activity was not criminal, the disruption in the educational setting was so great that the termination was upheld. Another example would be if the person brings personal problems (such as marriage disputes) into the workplace to the extent that it causes disruption to the workplace.

Behavior that creates actual legal liability for the organization would be appropriate to investigate. Most inappropriate actions with children or child abuse would fall into this category, as would a number of other behaviors both on and off the job.

Allegations of misconduct in all the above areas would make it easy to initiate an investigation. A secular corporation would consider many of these allegations to be adequate reason for an investigation. In addition, the mission can apply its own doctrinal standards and codes of conduct. An investigation must be done carefully and in compliance with local law. Sometimes the laws of different jurisdictions are actually in conflict, leading to a real puzzle.

IV. Implications of International Law for Investigations and Termination

Employment in the U.S. is generally at-will, but in many countries, terminating an employee is difficult. Requirements to show cause for termination may be high, and the process may be rigid. There may be necessary bureaucratic procedures, or certain types of release or severance. “Gross misconduct” may be required, and that standard may be hard to meet. Some countries’ employment law extends extraterritorially, but not that of others. Before even thinking about terminating someone under the law of a particular country, it is important to check the legal standards and what you must do before you can terminate. Across many jurisdictions, there is commonality for many harassment and discrimination principles. With care, a harassment or discrimination investigation can usually proceed.

International law principles also affect the investigation itself. Local data protection and privacy laws can have a profound effect on the investigation. For instance, in some countries, anonymous whistleblowing is prohibited, and so reports such as child safety reports may need to be made in person. If the investigation is taking place in a country with strict controls on all personally identifiable data, the investigation should use—and may even have to build—data export channels for data that crosses jurisdictional lines. The organization must also be aware of what local law requires as far as employee access to investigative files. If access to the investigative files by someone who is accused during an ongoing investigation is going to be broad, that must be taken into account in designing the investigation.

In most international law situations, having written codes of conduct will be of advantage to the organization if there is an infraction. That way, there are clear rules that highlight the misdeed. Signed policies may be an enforceable contract. The general codes of conduct should reference compliance with local employment law (to the extent that the organization can say so in good conscience). In countries where the organization has a significant presence, review all codes of conduct specifically in light of local law before any discipline issues arise.

Be aware of other differences between U.S.-based and international investigations as well as applicable local legal standards.

V. Keeping an Investigation Legal and Following Best Practices

In most jurisdictions, allegations of serious misconduct can usually trigger an investigation and, if true, discipline. The key is that the organization has defined the reason for investigation, and that it is not in conflict with local legal principles.

While religious organizations may not be protected quite so strongly in other countries as in the U.S., there can be great commonality in many Scriptural principles. That is why principles such as child protection should be firmly grounded in Scripture.

In many countries, employees can memorialize understandings and limit rights by contract. Therefore, policies that employees agree to and sign can be firm grounds for investigation and discipline.

In many countries, the process is very important. In most jurisdictions, it will be wise to have a clear progression in the following five steps:

1. Establish policy;
2. Investigation on violation of policy;
3. Decision regarding discipline;
4. Appeal of discipline (or at least the opportunity to appeal);
5. Carrying out separation from the organization (or lesser discipline).

Not all jurisdictions will specifically require these steps, though some do. Most United States jurisdictions do not specifically require all five steps. But most legal jurisdictions have some variation on the concept of “due process,” and following steps that are seen as best practice are a way of ensuring due process. In addition, if a religious organization in the United States has these steps in place, and allows a formal appeal, the decision will be almost impossible to challenge, because secular courts will not review judicial decisions by ecclesiastical courts.

If the decision includes dismissal, local law procedures should be followed. Any discussion of the investigation and reporting to authorities should be done thoughtfully. In some jurisdictions, little can be said or done. In other jurisdictions, and with certain types of misconduct, mandatory reporting may be required. Local law may control how investigative data is preserved, either requiring broad preservation or broad destruction of data.

In the U.S., religious organizations have a privilege to make certain statements in the context of discipline, with respect to employees and members. It would be a violation of the First Amendment to allow slander actions to be based entirely upon statements made within a religious organization, before its recognized leadership, and under its disciplines.²⁸ In other jurisdictions, there may be less freedom to speak, or far more freedom.

In the United States (and in other places such as Australia and the U.K.), case law has developed in such a way that in matters like child abuse, leaders may—or may not—have certain responsibilities towards children who may be at risk. Beyond mandatory child abuse reporting, this may lead to notification of sending churches and other notifications.²⁹ However, statements that give too much detail or are made outside certain tight circles are highly risky and should be thought through carefully, especially if there was no provision for such statements in the policies that the employee signed.

Conclusion

Religious organizations have certain freedoms to set standards of conduct for behavior on the job and in private. Therefore, missions should be able to require certain codes of conduct for their personnel, and should be able to discipline persons who violate these codes of conduct.

The mission must consider many things, including legal principles of both the mission’s home country and the local jurisdiction. Most of the hard work of determining how discipline will occur should be done ahead of time, in formulating good interlocking documents that lay out the mission’s standards and the employee’s agreement to those standards. If an investigation becomes necessary, the process should be carried out thoroughly and correctly, in compliance with applicable legal principles. This will create a solid and defensible result. Lastly, the mission should take a wise approach to making statements about the incident.

This resource is for informational purposes only and may not apply to a given place, time, or set of facts. It is not intended to be legal advice and should not be acted upon without specific legal advice based on the particular situation.