By now most of you will have read The Houston Chronicle‘s second article on sexual abuse in the SBC. I believe that the reporting by The Chronicle, taken together with the responses by various Southern Baptists on this site and in other places, offers us a painful examination of a few undeniable facts:
- People who want to abuse children sexually are able quite easily to gain access to our pews and our pulpits and are using that proximity to pick off innocent lambs within the flock.
- If it has served their self-interest to do so, other Southern Baptists have far too often, rather than forcing those miscreants to face justice and rather than preventing them from perpetrating their abuse elsewhere, chosen to silence victims and pass abusers on to other churches just in order to distance themselves from the problem.
- There are aspects of Southern Baptist polity that can pose obstacles to some of the ways that might immediately spring to mind for curtailing this pattern.
I’d like to add to the conversation another topic for discussion. If sexual abuse in churches is a disease threatening our family of churches, then, following that analogy, I’d like to argue that our immune system has been compromised by a specific change in our polity. I’m not talking about a theological or a philosophical change; I’m talking about a practical change that emerged recently (within my lifetime) and is now ubiquitous.
In the mid-1800s, the average Southern Baptist was a farmer with no college education. The average Southern Baptist pastor was of similar stock. Neither had ever held a job that involved having an office (including the pastorate, which probably did not include an office). Parson and parishioner alike were thoroughly agrarian.
Frederick Jackson Turner, in his 1920 work The Frontier in American History, analyzed the impact of the Industrial Revolution upon what had previously been frontier areas. An exchange of one set of virtues suited to the frontier—individualism, nationalism, mobility, and egalitarianism—for another set of virtues suited to industry—efficiency, ambition, professionalism, and futurism—affected Southern Baptist ministry as well. As more Southern Baptist congregants adopted these urban virtues, the twentieth century brought into Southern Baptist life the church office, the policy and procedure manual, and Dr. Pastor. The practices of American Industry became one formative influence, alongside theology and tradition, of Southern Baptist polity. Indeed, I would argue that during my lifetime (except, perhaps, for the most recent years), the influence of American business upon our polity has been the ascendant, and maybe the regnant, influence among that triad.
My lifetime has witnessed within American business the emergence of the HR Department. It is dogma—sacrosanct—in American Industry that you never give negative details about a past employee’s time at your company (OK…maybe not quite “dogma,” but check out this article from Inc. and see whether my hyperbole isn’t pretty close to the truth). I contend that Southern Baptists have drunk deeply from this well and that the amount of useful information to be gleaned from job references given for employees of Southern Baptist churches is not high.
In my experience, most churches searching for staff (pastoral or otherwise) actually do put some effort into contacting listed references and researching former employers. I don’t think that’s where the problem lies. I think they just aren’t getting the truth when they make those phone calls. Why is that? Is it because they are reaching people who are part of a conspiracy to enable an abuser? Sometimes, yes. But also, I would argue, it is sometimes because the person fielding that phone call reads Inc. or otherwise thinks that he or she knows that it is the best course of action not to say anything about a bad ending for a former employee.
If we want to start making some headway against this problem of sexual abuse in Southern Baptist churches, this needs to change. If it does, it might help solve some OTHER problems, too, because there are pastoral candidates out there who are bad for reasons other than sexual abuse.
So, I think it might be nice if our conventions, associations, and seminaries started to educate local churches in how to respond to the person who calls while pondering the resume of the former pastor. It might also be helpful for the ERLC to offer an “explainer” about whether and how honest answers to calls for references exposes a church to legal liability. Indeed, perhaps in this moment of crisis we ought to push for state legislatures to adopt laws that explicitly shield churches from liability for providing job references for former employees. I’m open to other ideas and will not feign expertise about employment law. No HR expert, however, will ever convince me that honesty isn’t the best policy for cleaning up these problems of predatory behavior in our pulpits.
I know that in orientation, Augie Boto says that if a church knows something negative about a former pastor, the best way to respond to that is to express a personal opinion. “If I were presented the opportunity, I would not hire him.” That is an expression of a personal opinion, and you have the freedom to express your opinions.
As I understand it, from my limited legal experience (and we have enough lawyers that read here who could weigh in and perhaps correct my opinions), we are in fact on shaky legal ground if we share specific information or tell the other church what they should or shouldn’t do.
“I would not hire the person again.” Pretty safe.
“You shouldn’t hire him.” Less safe.
Sharing specifics of why. More exposure.
It may be that when someone has committed sexual predation or pastoral malfeasance, the spiritual danger is greater than the legal danger and we should follow Bart’s advice.
This is my understanding from discussing the issue with legal types. Bart asked for “explainers” – I’d love to hear from one of our lurking lawyers and get a better explanation than I’ve given.
My understanding is that there is legal exposure if you give facts about a person that negatively impact his employment.
My opinion is that there might be times when such exposure is righteous and worthwhile.
We are called to holiness, not to simply protect ourselves from all legal exposure.
Dave: I’m not an employment lawyer, but can give you a general idea based on 30 years in practice. First, every state has its own laws and own precedent that govern these sorts of things, so there’s no one clear rule you can follow. You have to consult your own state’s laws. If former minister was convicted of a specific crime and you fired him because of that specific crime, then that seems like it’s an easy call – it’s publicly available information. But even then, some states prohibit employers from asking about such things or don’t allow such questions until an offer of employment has been made. I don’t know if such states have “ministerial” exceptions or not.
Unfortunately, it’s a messy morass out there and not easily decipherable without help. If you don’t have a lawyer in your congregation – – insert standard lawyer joke here 🙂 – – you can find one who will help in your state. If nothing else, the state associations should hopefully provide some help in this area.
My advice on legal issues to the four congregations with which I’ve been associated since I’ve been a lawyer has always been twofold: (a) move very deliberately and (b) assume the worst possible outcome and decide if you can accept it.
I agree with you that we are called to holiness and that means making tough calls sometimes. We are also called to be good stewards and must make balanced determinations. It seems to me the more egregious the former minister’s actions, the more that scale must tip in favor of speaking out versus worrying about liability. Where the tipping point lies is a horrifically difficult call to make. Presumably much prayer and much seeking of wisdom should accompany any such decision to talk about a former minister, regardless of the circumstance, good or bad.
One very specific thing I would suggest, no matter what the situation: never talk to prospective employer on the first phone call. Always ask for time to call back so you can be better prepared. That way you have an opportunity to craft a response that will help the other church while keeping yours out of any legal hot water. It might also tell the savvy search committee member something is wrong without saying a word.
Thanks
Findlaw.com was willing to go a little further. Although I’m in no position to judge how well they actually know the law, they are a fairly prominent website about legal matters. They confirm what I also believe to be true:
“an employer is not prohibited by law from providing truthful information about a former employee to a prospective employer”
https://employment.findlaw.com/hiring-process/is-a-former-employer-s-bad-reference-illegal-.html
You’re not going to jail and you’re not going to suffer a judgment against you for reporting to someone’s potential employer something that is true. Indeed, they suggest that you are actually in WORSE shape if you are sharing your personal opinion, but you can read their article for yourself.
The fact that three pretty well-informed guys are in such different places all over the map on this illustrates my point in the original post: On this VERY IMPORTANT QUESTION there’s a lot of misinformation in our convention (even if it is the information that I am sharing). Clearing that up could be helpful.
One last thing: Sometimes lawyers talk with us, Dave, and (perhaps without our realizing it) they are on a different subject-matter than we are. On the one hand, there’s what will get you sued; on the other hand, there’s what will make you lose a suit if you are sued. Sometimes lawyers will give you the impression that you are on “shaky legal ground” when they really aren’t saying that you might be doing something illegal; they’re just saying that you might be doing something that will make someone angry enough to sue you even if they are unlikely to win.
It’s not an unreasonable approach. You lose 0% of the suits that aren’t brought against you. And who knows what a crazy jury might do.
But for a matter as important as this, for my part, I want to know the difference between “someone might sue you for this” on the one hand and “this is illegal” on the other hand. I’m willing to be known as the church and the pastor who get sued every so often for being so diligent about keeping child molesters out of ministry.
Disclosure: I’m an attorney and a pastor. I don’t claim to have any expertise in employment law specifically.
Let’s look at a hypothetical. John Doe is the youth pastor at Voices Baptist Church. One of the female members of the youth group, a minor, tells the senior pastor that Doe touched her inappropriately during a church trip. The senior pastor immediately reports the allegation to the police. Doe quits his job at the church, refuses to talk about the matter, and moves away. No formal charges are filed against him. The church can’t find out why. The police won’t discuss the investigtion, and the minor and her family have also left the church and don’t want to talk about it. A year later, the VBC pastor gets a request from another church; they’re considering Doe for a youth ministry position and want a reference.
What can the pastor say? Obviously, he shouldn’t say: “Doe is a sexual predator. He’ll hurt your kids. Don’t hire him.” Those kinds of statements would be problematic on several fronts. But the pastor can give factual information: “Doe was employed as the youth pastor at VBC between 01/01/2015 and 06/30/2017. On 06/28/2017, a female minor reported to me that Doe had touched her inappropriately during a church trip. I reported the allegation to the Voicesville Police Department the same day. Doe voluntarily resigned his position on 06/30/2017.” All of those statements are purely factual assertions that can and should be supported by documentation. It’s now up to the second church to decide how it wants to handle its employment investigation of Doe.
Doe might get upset that this information was shared, but what has VBC done wrong from a legal standpoint? They haven’t defamed him. They haven’t tortiously interfered with a new employment contract. They haven’t intentionally inflicted emotional distress. They haven’t shared private information protected by law. They shared truthful, verifiable information. The church didn’t weigh in on whether Doe actually abused the minor.
Churches should also consider liability from another perspective. Let’s say that a church has information relating to an employee’s sexual misconduct that they choose to omit from a reference. The employee abuses someone in his new church. The victim and/or the new church might sue the first church for intentionally or negligently providing misleading employment information. A judge might very well be willing to allow that claim, and a jury might be eager to enforce it–maybe much more so than penalizing a church for providing truthful information about allegations of sexual abuse. I’d much rather be the church that gets sued for providing relevant info than be the one sued for withholding it.
I do think that knowing the legal ramifications is helpful. I am thankful for some of the input here. But as others have pointed out there is a much greater liability. Ultimately, the only one that matters. One day we will stand before the JUDGE. If we have acted in ways that please Him, any earthly fall out we suffered for a few years as a result of upsetting people will seem totally insignificant.
May God strengthen our hearts so that we fear Him and dread nought.
^^Now THAT’S what I’M talking about! 🙂
Jeff: My limited research (not an employment lawyer, either) suggests that even providing factually accurate information can become problematic in some states. I agree with your analysis in the last paragraph, but nonetheless, some states barely allow a former employer to say anything except “he worked here.”
Yes! This is an aspect of thorough background checks and reference checks for leadership, paid and volunteer. I believe your idea goes hand-in-hand with mandatory reporting.
I fully agree with this and would love some resources clarifying how and in what ways churches can be honest during an interview process. Also, there may be times that honesty would put a church in legal jeopardy/liable but the truth would be more important.
I agree. Most of the concerns raised in the article linked in Bart’s post deal with practical business considerations, not actual liability. From a business standpoint, an employer won’t usually care whether a bad employee gets a job someplace else. Thus, even if the chance of being successfully sued is low, it’s not worth it to take the risk. But from a ministry standpoint, it should matter very much whether another church hires an unfit minister. It’s going to hurt others and hinder the effectiveness of that church’s ministry. Just stick to the facts of the employee’s record. And speaking of records, keep them so you can document that the info you shared is truthful.
I think Jeff is giving good information here.
Bart, I agree that giving honest references and information about employees with past problems is important. It’s one thing to be gracious and give more emphasis to positive traits than to problems. It’s another matter to hide or ignore very serious problems that could hurt God’s people. I think a deep heart issue related to all of this is that many people act too much out of a fear of what people might do (sue us, etc.) and not enough out of the fear of God. I had the painful experience of being involved in exposing a case of very serious sexual abuse at a Bible college about 10 years ago. I shared that story and how it points to a lack of the fear of God as a root issue about a year ago. What I shared then is, I feel, very relevant to the current heart breaking news. Here is a link to where I share my story (it’s a bit long to copy into a comment): https://parresiazomai.blogspot.com/2017/11/why-is-there-so-much-sexual-abuse.html
Thanks for sharing some very relevant personal information.
Churches are inconsistent when it comes to perceived liability issues. For example, if a community group wants to use the church building for their meetings, it’s easy for the church to say no on the basis of liability: one of the group members might fall and sue. Never mind that a church member or worship visitor could just as easily fall and sue. Never mind that having the community group there might be a great opportunity for outreach and ministry. On the other hand, there could be a genuine safety issue at the church (let’s say a tricky entryway or an uneven floor) that is a serious ongoing liability, but it gets ignored because it would cost money to fix and any change might upset some of the membership. We’re concerned about liability when considering some new proposal, but we dismiss liability concerns when protecting the status quo.
Overall, churches allow ignorance and passivity to control their thinking about liability. We need to do what is right for the safety of others and the efficacy of our ministries. As to referrals, it’s just easier not to say anything negative about a former employee. But easy is not the same as best.
We need more education all the way around. My church took two wrong actions when they hired me. First, they never called my references. Second, I didn’t list my current pastor as a reference. That should have made them wonder, but they never asked, nor called him. I have talked with the chairman of the search committee at length about it.
Also, maybe I’m over simplifying, but would a pastoral candidate who was passed over actually sue a church? If he sues the church, he’s sure not to get another sniff at any other church, and his misdeeds, why he got passed over in the first place would become public record, exposing him even more. I think churches can be honest with relatively little worry about liability, but maybe I’m missing something.
There’s some reason for the fear on references, but I’m loathe to have someone take one sentence out of context and paste it as evidence that I’m a jerk who thinks we should lie about predators–which I do not think we should do, and I do think we should just take the liability for it is and tell the truth–I won’t spell it out. Suffice to say that questionable legal advice from someone’s father’s brother’s best friend’s former roommate has many folks scared of the lawsuit if dealing with a “rumor” instead of a conviction or confession.
Or, alongside the “resign in exchange for a severance package” there was an agreement that the departed guy will say nothing bad about the church, and the church will say nothing bad about him. And, since the church let him slip out the door without actually finding anything definite, there’s no “proof.”
We also are WAAAAAYYYYY too quick to think people have changed. There’s maturity: hey, when Doug was our youth guy, he was lousy at keeping his office clean, but maybe he’s grown up. That we should acknowledge and support. But sexual predation should be a long-term disqualifier. I think a 75-year gap to demonstrate repentance would be a good start.
As to not calling your current pastor: what if you were seeking a position without his knowledge? Back when I was a youth dude, I worked for a pastor who stated that knowing I was looking for another job showed I was not loyal to him, and was a fireable offense. I didn’t need anyone calling him and getting me fired. That goes on, too…we have a lot of dysfunction in the employment world of Baptist life.
Here is a relevant Bible passage:
19 Don’t accept an accusation against an elder unless it is supported by two or three witnesses.
20 Publicly rebuke those who sin, so that the rest will be afraid.
21 I solemnly charge you before God and Christ Jesus and the elect angels to observe these things without prejudice, doing nothing out of favoritism.
22 Don’t be too quick to appoint anyone as an elder, and don’t share in the sins of others. Keep yourself pure. (1 Tim. 5:19-22 CSB17)
May God give us wisdom, courage, strength, help, and grace in applying His Word to our lives and our churches.
1 Peter 2:13-15 New American Standard Bible (NASB)
13 Submit yourselves for the Lord’s sake to every human institution, whether to a king as the one in authority, 14 or to governors as sent by him for the punishment of evildoers and the praise of those who do right. 15 For such is the will of God that by doing right you may silence the ignorance of foolish men.
1 Peter 4:17 New American Standard Bible (NASB)
17 For it is time for judgment to begin with the household of God; and if it begins with us first, what will be the outcome for those who do not obey the gospel of God?
Romans 13 New American Standard Bible (NASB)
13 Every person is to be in subjection to the governing authorities. For there is no authority except from God, and those which exist are established by God. 2 Therefore whoever resists authority has opposed the ordinance of God; and they who have opposed will receive condemnation upon themselves. 3 For rulers are not a cause of fear for good behavior, but for evil. Do you want to have no fear of authority? Do what is good and you will have praise from the same; 4 for it is a minister of God to you for good. But if you do what is evil, be afraid; for it does not bear the sword for nothing; for it is a minister of God, an avenger who brings wrath on the one who practices evil. 5 Therefore it is necessary to be in subjection, not only because of wrath, but also for conscience’ sake. 6 For because of this you also pay taxes, for rulers are servants of God, devoting themselves to this very thing. 7 Render to all what is due them: tax to whom tax is due; custom to whom custom; fear to whom fear; honor to whom honor.
Okay.
We all believe the Bible and agree with what is says.
What exactly are YOU saying that these Scriptures say?
Dave, I’m not sure if you were replying to just Douglas, or to both Douglas and me. I did post some scriptures with minimal discussion about what I see them as saying relevant to this topic. This morning I posted a post on my blog where I discuss those same verses as they are relevant to the topic of sexual abuse in some detail. If anyone is interested, they may read it here:
https://parresiazomai.blogspot.com/2019/02/sexual-abuse-in-southern-baptist.html
Douglas
Good article and well-written. One book on Baptist history I’ve read notes the early 20th century move toward “efficiency” in the SBC. You are right that the business model has become dominant, to the point that pastors are viewed as hired employees and not real members of the church. This relegates their leadership to that of either a very good salesman able to promote a vision or the church handy-man who is there to do the church’s bidding. This mentality is a cancer on our ministries in so many ways, and this crisis regarding abuse of power for sexual gratification is one of the more egregious examples. Our polity must allow for some method to remedy this. Pastors who have violated the trust of their people, either by involvement in a willing affair or by manipulation and sexual abuse of a member (adult or minor) should, by NT standards, be marked, publicly rebuked, and dealt with in accordance with 1 Corinthians 5. There should be no hiding his crime or passing him off to another church. Such actions are in themselves negligent at best and criminal at worst.
If a pastor is terminated for having an affair or for malfeasance, giving a truthful reference becomes simpler both legally and morally. If the pastor is “allowed” to resign and the congregation spared the trauma then a later truthful reference becomes problematical. There is no need or requirement to share every detail publicly. But too many churches play charades when it comes to terminating an employee.
If we have nothing to do with the unfruitful deeds of darkness but instead expose them then we are children of light and can live in the light. Business models of other considerations that encourage the people of God to live in the shadows move us in the wrong direction
Amen.
Reading this brings to mind the discussion in William Thornton’s earlier article on the scandal of ordination. Shouldn’t it be both sufficient and still within the legal limits to simply state that the church revoked his ordination? If I’m working at a church and receive a reference call about a former staff member and they want to know about him, I could just say, “I’m sorry, all I can tell you is he is no longer qualified to serve here.” I know it’s not always as straightforward as it seems but, I agree with Bart that we need to do the right thing regardless of the consequences.
We revised our Bylaws several years ago and stipulated information about revoking ordinations with the potential in mind that this kind of situation could occur. I obviously agree.
Jon Whitehead has an excellent thread on his Twitter going into detail about the legalities of all of this. TL;DR, Lawyer Whitehead agrees with me.
Ssw that. Would love to see him put that into a post form. It was good
I think the question of legal liability may be nebulous- probably would have to be litigated.
The point on which I think all parties here are agreeing is that there comes a time when shielding ourselves from lawsuits is not our primary task. Protecting the church from predatory pastors has to rank as a higher priority than protecting the church from lawsuits.
Let me think through my testimony.
“Yes, I shared the information that Pastor Buford was a predator with First Church. Podunk, and they didn’t hire him.”
The jury might sympathize with me there.
References can and do present legal challenges. Why not create an SBC hotline managed and sourced at the convention level. This would provide victims a way to receive counseling, confidentially report incidents without local reprisal fear, and enable the convention to address matters with appropriate local law enforcement and church officials.
There has also been an unfortunate cultural taboo against talking about such things by decent people. If the person on the other end of that phone call is of this old school of thought and is a decent person, there’s a strong inclination to never discuss it. I know too many adults who were victimized in their youth who suffered the silence of others (even their own parents!) in silence themselves because of this taboo. This one aspect of the good old days that needs to be done away with. Propriety and discretion needs to stop where it accords honor to perpetrators in an attempt to honor victims with silence.
Here’s a good source on the topic from the management (NOT legal) perspective.
Pearce, J.L. (2017). Organizational Behavior Real Research for Real Managers. (4th Ed.). Irvine, CA: Melvin & Leigh.
See Chapters 3 and 12 on hiring and firing.