“Sex-Plus” Discrimination During COVID-19 Layoffs

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The government response to the novel Coronavirus COVID-19 shut down businesses across the country. While most states are now reopening, many employees are finding that the COVID-19 layoffs weren’t as temporary as they thought. Older women in particular are finding that the overlap between continued restrictions on women-led industries and fears around Coronavirus vulnerabilities are creating fertile ground for “sex-plus” discrimination, leaving them without work even as the country reopens for business.

Older Women Face the Highest Numbers of COVID-19 Layoffs

April 2020 was undisputedly the worst month in recorded history for U.S. employment. In response to the COVID-19 pandemic, entire states shut down and approximately 20 million people lost their jobs. The unemployment rate in the United States skyrocketed from 4.4% to 14.7%, the highest level since the Great Depression. While those numbers have recovered slightly as the country reopened, nationwide unemployment was still at 11.1% in June 2020.

The force of the Coronavirus shutdown wasn’t felt with equal weight by everyone, though. According to an AARP Employment Data Digest, older women (over age 55) were hit the hardest, with an unemployment rate of 15.5% in April 2020. There were a variety of factors that converged to make older women most vulnerable to COVID-19 layoffs.

COVID-19 Shutdowns Hit Women-Led Industries Hardest

First, unlike in earlier recessions, this year’s shutdowns hit the service industry first. High-contact workplaces like retail stores, beauty salons, and restaurants — where women make up the majority of employees — were shut down first and have the strictest regulations when reopening. While factories hurried to retrofit and reopen and offices pushed staff into remote work, these industries simply closed. That left women more likely to face temporary layoffs, and made it more likely that those terminations would become permanent as small service industry businesses made difficult decisions about when and whether they would reopen.

Older Adults Face Layoffs Because of COVID-19 Vulnerabilities and Assumptions

Second, early studies revealed that older adults were at higher risk of complications if infected with COVID-19. This combined with existing assumptions that older workers cost more in health benefits and would be less able to adapt to the technology needed to work remotely than their younger counterparts. When companies sought to trim their workforce and stay open, older workers were more likely to be the ones laid off.

When these two factors overlapped, older women found themselves in the crosshairs. It is just one example of what happens when intersectional discrimination weighs most heavily on workers who fall into more than one minority category.

“Sex-Plus” Discrimination and Intersectionality in the Workplace

There are a variety of state and federal laws that protect against discriminatory employment practices. The most famous of these is Title VII of the 1964 Civil Rights Act. This federal law prohibits discrimination based on an employee’s inherent traits:

  • Race or color
  • Sex or gender (including pregnancy, gender identity, and sexual orientation)
  • National origin
  • Religion

Any time an employee is targeted because of one or more of those traits, she or he can file a complaint with the Equal Employment Opportunity Commission (EEOC). Intersectional employment actions give an employee a “sex-plus” discrimination claim based on the overlap of discriminatory conduct. For example, someone fired because she was a black woman would have an EEOC claim even if she wouldn’t have faced the same discrimination as either a white woman or a black man. Intersectional discrimination has been protected since at 1980, at least when both traits fall under Title VII’s umbrella of protection.

But Title VII doesn’t shield against age discrimination. At the federal level, ageism is the target of a separate law, the Age Discrimination in Employment Act (ADEA). Even though this law has been in effect nearly as long as Title VII, it has different rules about when and how older workers can bring claims against their employers. In some parts of the country, those differences can create problems for older employees claiming sex-plus discrimination based on a combination of sex and age.

New York Human Rights Act Brings Intersectional Discrimination Claims Under One Umbrella

There is good news for those older women facing COVID-19 layoffs closer to home. The New York State Human Rights Law doesn’t draw the same distinctions between inherent traits as the federal law. At the state level age, sex, race, and many other traits are all protected under the same statute, with the same procedures. This makes it easier to pursue sex-plus discrimination claims and raise issues of intersectionality under the state law.

The law also protects against a wider variety of ageism. While the ADEA only applies to employees over age 40, and then only for discrimination based on assumptions that they are “too old” to do the job, the New York law protects against anyone age 18 or older from any employment decision made because of the individual’s age. That means that New York employees facing sex-plus discrimination in the wake of the Coronavirus have access to broader protections than their counterparts in other parts of the country.

At Eisenberg & Baum, LLP, our gender discrimination attorneys look beyond sexism to consider a wide variety of intersectional discrimination. We want to help our clients be compensated for the harm they suffered from sex-plus discrimination and layoffs based on false assumptions about their vulnerability to COVID-19, gender roles, or technical abilities related to age. From our office in the heart of New York City, we will review all aspects of your employment history to identify discrimination, and help you consider all your options under state and federal law. Contact us today to schedule a consultation with one of our attorneys.

Is Dating Violence on Campus Gender Discrimination?

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Every year, high school and college students across the country become the victims of sexual abuse and misconduct through dating violence. When domestic violence happens between intimate partners it can cause real emotional abuse, physical harm, and all too often ends in death. But does that make dating violence on campus gender discrimination? A new federal policy says it is.

Campus Title IX Enforcement Leaves Fatal Gaps in Dating Violence Case

Student track star Lauren McCluskey had reported her boyfriend Melvin Rowland to the University of Utah campus police several times for dating violence, according to her parents’ lawsuit. She had reported that he was harassing her, threatening to release revenge porn after she ended their relationship on October 9, 2018. However, according to the lawsuit, the investigators assigned to the case did not take those threats seriously, even though Rowland was more than 15 years older than her and a registered sex offender on parole.

According to one local news article, two of Lauren’s friends had also gone to the university’s dorm staff saying they were afraid he was controlling her, talked about guns, and often stayed in her dorm room. In spite of the reports, no work happened on her case, allegedly because the detective assigned to the case was off on vacation. By the time he came back, McCluskey was dead. She had been shot by Rowland outside her dorm on October 22. He later killed himself.

McCluskey’s parents sued the school saying that the campus police’s failure to respond was a violation of Title IX of the federal Civil Rights Act and state anti-discrimination laws. But the school says it wasn’t required to respond because Rowland wasn’t a student or employee of the school. There was also some question as to whether dating violence counts as gender discrimination under federal law.

Campus Investigations Under Title IX Shift with Politics

Until 2011, high schools and college campuses didn’t have much guidance on how to respond to reports of dating violence and sexual abuse happening on or around their campuses. Many assumed those behaviors were prohibited under federal law or state criminal codes, but enforcement was erratic. Then, the Obama administration sent out a “Dear Colleague” memo providing instructions on preventing gender discrimination and sexual harassment on campus and involving students. That standard included several protections for the victims of sexual assault and dating violence, including a lower standard of proof and prohibiting the use of face-to-face mediation that often perpetuates power dynamics in abusive relationships.

However, in November 2018, Education Secretary Betsy DeVos, a Trump appointee, rescinded that guidance. She issued new regulations narrowing the definition of sexual harassment, tightening reporting requirements, limiting investigations into off-campus behavior, and stripping many of the protections for victims. In announcing the regulations, DeVos claimed the changes were designed to balance the rights of victims and their accused perpetrators:

“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined. . . . We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas.”

However, these new rules created a gray area around the issue of dating violence. Under the 2018 regulations, Title IX only applies if the dating violence is “so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Cari Simon, former director of the Congressional Victims’ Rights Caucus and Title IX lawyer told the New York Times that this narrower definition of sexual harassment was a deterrent to students reporting the danger:

“If we’re essentially saying to [] stalking and dating violence victims, ‘Sorry, this isn’t pervasive enough, severe enough or objectively offensive enough,’ they’re not going to come back.”

New Regulations Make Dating Violence on Campus Count as Gender Discrimination

In response to these concerns, DeVos’s Education Department has now issued another new rule, correcting some of the weaknesses created under the 2018 policy. These new rules specifically say that domestic violence, dating violence, and stalking are gender discrimination and trigger a school’s investigation obligations under Title IX. This supplements guidance specific to sexual assault.

Victims’ advocates are praising the new rule, saying it puts schools and universities on notice that they must take steps to train their staff and protect their students from harm on campus. Sage Carson, manager of Know Your IX, a victims’ rights advocacy group, told the New York Times:

“There’s still a lingering idea that dating violence is an interpersonal issue that two folks need to work on, something that just happens between men and women, rather than seeing it as a form of violence that has an impact on education.”

They would also help students like Lauren McCluskey and their parents when schools ignore their concerns. Ultimately, these tougher regulations could give victims advocates the tools they need to prevent more victims’ deaths when schools don’t take their reports of dating violence seriously.

At Eisenberg & Baum, LLP, we have a team of attorneys who know what to do when dating violence and sex abuse threaten students in high school or college. We work with students and parents to enforce their rights under Title IX as well as state and local laws, and will help you and your child and get the justice and compensation you need to move on. Contact us today to schedule a free consultation.

Union Accuses Airport Starbucks Franchise of Transgender Discrimination

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Transgender baristas in airports across the country are saying they face misgendering, the use of “dead names” and other transgender discrimination, all while wearing the logo of a popular progressive company: Starbucks. While the parent company set high standards for the treatment of LGBTQ and other minority workers, its franchisee, HMSHost, appears to be falling short of the mark. But is there anything the employees’ union can do about it?

Baristas Face Transgender Discrimination in Airport Starbucks

A number of baristas from airport Starbucks stores around the country are reporting that they are facing transgender discrimination by their managers up to the level of the franchise owners. Cora Noble-Bray, a barista at Portland International Airport said:

“I transitioned to a woman while working at Starbucks and while a lot of my coworkers picked up my new name and pronouns immediately, one lead in particular did not put any effort into changing. Being called by my old name and seeing it stay on my work schedule felt like my choice and my identity didn’t even matter to him or the company. The managers at HMSHost do not use my correct pronouns. They continually refer to me as he/him, even though I’m a trans woman… I’ve let them know what my new name is and the old name still shows up on my schedule. I can handle being misgendered by customers that I only see for two minutes. Our regular customers and airport employees have all been good about getting my new name and pronouns right. But when it’s my direct supervisor, it’s exhausting, and I genuinely dread coming in to work—so much so that I consider calling off and taking discipline. I never know when he’s going to say something. I feel like I always have to have my defenses up.”

Gigi Tolentino told a similar story of her time as a barista at the Honolulu International Airport:

“Within the first two years of working at HMSHost I was misgendered and discriminated against and it reached a point where enough is enough, it was when one of my managers ridiculed me in front of the passengers and coworkers by shouting out “sir, he’ll be right with you!” and pointing at me. She was laughing and smiling assuming that that was funny, but that moment was the most embarrassing moment of my life. At that moment I was embarrassed and insecure about me being a transgender woman. […] So I stood up for myself because I’m not going to let someone tell me I’m not valid as a human being.”

One manager is even reported to have said, “as long as she has a p***y I will call her a she” about a transgender male employee.

The complaints were part of a 20-page report by UNITE HERE, a labor union that represents 45,000 workers in the airport industry and 4,000 workers at licensed Starbucks stores nationwide. The report analyzed approximately 2,000 workers at 142 airport Starbucks stores and included surveys of over 300 workers. In addition to allegations of transgender discrimination, it called out findings that the surveyed employees:

  • Faced race-based pay discrimination with Black baristas earning $1.85 less than white baristas
  • Worked through Starbucks’ 2018 racial bias training shutdown
  • Face poverty and homelessness
  • Were not provided tuition assistance on a level that allowed them to attend college
  • Faced national origin discrimination in the form of being told to stop speaking their preferred language at work

Franchise Operator at Odds with Starbucks’ Policies for LGBTQ Workers

If seeing the words “transgender discrimination” and Starbucks in the same headline surprises you, you’re not alone. The Seattle-based coffee company is known for taking pro-employee positions on everything from equal pay to college enrollment. As it relates to the UNITE HERE report, Starbucks’ public statements promise:

  • 100% racial pay equity
  • Nationwide racial bias training that closed more than 8,000 stores in 2018
  • Policies that allow LGBTQ employees to use their preferred names on store documentation
  • Housing subsidies
  • 100% tuition coverage (with certain conditions)
  • Global commitments to hire 10,000 refugees by 2022

However, these public statements only apply to Starbucks’ corporate stores. The airport coffee shops like the one where Ms. Noble-Bray and Ms. Tolentino worked, are operated by a franchise owner, HMSHost. According to the UNITE HERE report, the franchisee is falling far short of Starbucks’ lofty goals. Gabriel Ocasio Mejias, a former HMSHost Starbucks barista at the Orlando International Airport, said:

“Starbucks corporate is very well known to be supportive of the LGBT communities… In this company, it’s the complete opposite. They suppress your uniqueness… It makes me kind of feel in a way that I’m going back into the closet, which is very unnerving to me.”

UNITE HERE has been trying to get HMSHost to address the transgender discrimination and other harmful practices happening in its franchise stores. However, HMSHost denies any discrimination is happening, and claims that the report is a “well-known tactic” to gain leverage and recruit new union members.

National Labor Relations Board Weakens Employees’ Power to Fight Discrimination in Franchise Companies

So far, UNITE HERE hasn’t been able to get Starbucks to weigh in on the dispute. That may have to do in part with changes to federal regulations regarding union workers in franchise businesses. Earlier this year, the National Labor Relations Board issued a new regulation that took effect on April 27, 2020. This regulation rolled back Obama-era protections for franchise workers and loosened the connection between a franchisor (like Starbucks) and the actions of its franchisee companies (like HMSHost).

Since 2015, franchising companies like McDonalds or Starbucks have been considered “joint employers” for workers at franchisee companies or contractors as long as they indirectly controlled employees’ work (such as directing franchisees to use a particular scheduling software). Under the new regulations, the parent company will not be liable for labor actions taken against employees of franchisees or contractors unless they have substantial, direct and immediate control over the employees. This includes control over employees:

  • Pay
  • Benefits
  • Hours
  • Hiring
  • Firing
  • Supervision
  • Scheduling practices
  • Working conditions

This frees parent companies like Starbucks from legal risk when their franchisees fail to live up to corporate employment standards. In the case of HMSHost, some of the very policies UNITE HERE are challenging show that Starbucks does not exercise the level of control to be considered a joint employer under the NLRB’s new regulations. In fact, should Starbucks put pressure on HMSHost to change its policies, it could expose the parent company to more litigation, making doing the right thing a costly proposition.

At Eisenberg & Baum, LLP, our experienced gender discrimination attorneys work with employees in unions in New York and across the country. We know how to make the most of union grievance processes, to protect LGBTQ and transgender workers and what your options are to get relief from your employer, even if you work for a franchise. Contact us to schedule a consultation at our office in New York City, or over the phone.

Secrecy Clouds Catholic Cardinal’s Sex Abuse Acquittal

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The victims of sex abuse often fight personal battles between the need for privacy and the desire to make their abusers’ actions known. But when secrecy is the rule of law, it can create questions about what really happened in court. The gag orders and confidentiality surrounding a Melbourne Catholic cardinal’s sex abuse acquittal are leaving even the victims wondering what happened.

A Note About International Law

This blog post discusses an Australian criminal conviction and later acquittal on appeal. While both Australia and U.S. law are derived from the British common law, there are centuries of court opinions and statutes that drive them apart. That means that sex abuse victims here in the U.S. will not necessarily face the same procedural issues, or be entitled to the same confidentiality, as those described here. Nor do the decisions of Australia’s top court make it more or less likely that U.S. cases will have similar outcomes.

Catholic Sex Abuse Victims Found Justice in a Guilty Verdict

For years, the Catholic Church has been accused of covering up sex abuse scandals worldwide. States and national governments have identified hundreds of priests and thousands of victims, many of whom have been unable to get relief because of the Church’s internal policies. The Church protected its own, denying the problem publicly, and creating difficult procedures for those who did come forward.

Now, governments and individuals have begun to hold the Church and its officials accountable. Still, most of the sex abuse cases have been against individual priests. While bishops (the regional managers of the Catholic Church) had been charged and convicted for their roles in the cover-ups, until late 2018, none had been convicted of personally perpetuating sex abuse.

That changed on December 14, 2018, when Cardinal George Pell, the Archbishop of Melbourne, was found guilty of sexual abuse. The charges related to sexual assault of two 13-year-old altar boys. The allegations said he grabbed one boy’s genitals and forced his penis into the mouth of another. With that guilty verdict, Pell became the highest-ranking member of the Roman Catholic church to be convicted. He was also responsible for handling the Vatican’s financial response to sex abuse allegations against Australian priests. The charges against him began a wave of additional charges against cardinals and other officials in the highest levels of the Church.

Australia’s Top Court Hands Catholic Cardinal an Acquittal

But then, in April 2020, that conviction disappeared. Australia’s highest court reversed the conviction, saying that the jury ignored “compounding improbabilities” based on the conflicting testimony of the primary accuser and other witnesses. Here in the United States, juries and fact-finding judges are given the benefit of the doubt when it comes to weighing the credibility of conflicting witness testimonies. Unless a jury’s decision doesn’t match the evidence presented at trial, the appeals courts will leave it’s decision alone. (There may be other grounds for appeal based on procedural or legal issues.)

In this case, however, the Australian high court said the jurors put too much faith in the main sex abuse victim’s testimony and failed to adequately consider the “unchallenged evidence” from other witnesses. Specifically, the judges’ order seems to suggest that the prosecutor failed to prove the priest would have had time to commit the sexual assaults when he would have been too busy following a Sunday Mass. Because the judges believed the jury had made those mistakes, it reversed the guilty verdict, handing the Catholic Cardinal a Sex Abuse Acquittal.

Privacy Laws for Child Victims and a Gag Order Create Shroud of Secrecy

Commentators and sex abuse advocates have complained that they could not evaluate the Australian court’s decision because the evidence in question is not publicly available. Australia has sexual abuse laws that automatically protect the identities of child victims. The accuser here was 13 at the time of the sexual assault, though he was an adult when he came forward in 2015. Australia also has strict confidentiality rules for all criminal cases, which are intended to protect juries from receiving prejudicial information while they deliberate.

These confidentiality laws layered with a strict “gag order” prohibiting journalists from publishing information about the court proceeding. This suppression order was so comprehensive, even reporting about the order itself. A previously published book, Cardinal: The Rise and Fall of George Pell, by journalist Louise Milligan, was pulled from bookstores rather than running the risk of contempt charges. The New York Times reported:

“A problem in this case is that the public mostly couldn’t watch,” said Jeremy Gans, a professor at Melbourne Law School who closely followed the trial. “Most of us didn’t know any of the details, and none of us have seen the complainant’s testimony.”

Advocates called for some way to review the transcript without identifying the sex abuse victim. Jason Bosland, a law professor at Melbourne University said:

“The only way the judicial branch of government is held accountable is through principle of open justice, and that requires that the public be given as much information as possible.”

Here in America, concerns over victims’ privacy must be balanced against the First Amendment freedom of the press. While judges may often issue gag orders or protect the identities of witnesses, court records, and transcripts are generally matters of public record unless specifically sealed by the court.

For some victims, this level of transparency can make coming forward intimidating. They risk damaging their own reputations by publicly testifying about the abuse inflicted upon them and cross-examination that often blames the victim and uses other, unrelated past acts to tarnish their credibility. However, for those who do come forward, publicly exposing their abuser is often almost as important as any financial damages that may be available. Many sex abuse victims say their primary goal in coming forward is making sure their abuser cannot take advantage of anyone else

That is why sex abuse victims need zealous advocates who can help them balance privacy and publicity. They need someone who can push for sealed records and gag orders where appropriate, but who are willing to take the matter public and pull back the shroud of secrecy that their abusers hide behind. At Eisenberg & Baum, our sexual abuse attorneys to stand beside child victims and their families against their abusers and the churches and other organizations who protect them. We can help you balance publicity and confidentiality and receive the compensation you deserve. Contact us today to schedule a free consultation.

Could Productivity Apps Give Bosses Keys to Online Sexual Harassment?

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How much personal information do you want your bosses to have about your home life? Thousands of New York residents are working from home as a result of the Coronavirus, but could their computers be opening them up to unwanted sexual advances? As more employers turn to productivity apps to monitor remote workers, could sexual harassment take on a new virtual form?

Employers Turn to Productivity Apps to Monitor Remote Workers

The nationwide response to COVID-19 has caused as many people as possible to work from home to reduce their risk of exposure. While essential workers, medical professionals, cooks, grocery clerks, and others have been working on the front lines, many employers with office workers have suddenly discovered that they can work from home, rather than being laid off.

However, employers aren’t simply trusting that their employees are really working while they are on the clock. Demand is surging for software to monitor employees and their productivity. These apps are not new. Wall Street firms have been using them for years, often without giving their employees much say in the matter. However, the coronavirus outbreak has turned them into a hot commodity. One such program, Hubstaff, reported that its monthly users have tripled since March.

As one New York Times reporter soon learned, these productivity apps often pick up more than even employers intended. In one month of using Hubstaff’s productivity app, reporter Adam Satariano and his editor, Pui-Wing Tam quickly found the app got a little too close for comfort:

“After three weeks of digital monitoring, the future of work surveillance seemed to both of us to be overly intrusive. As she put it, ‘Ick.’”

Employees clock in to the app on their work devices. Every few minutes, the app:

  • Takes screenshots of websites visited
  • Notes which documents have been opened
  • Tracks social media sites visited
  • Maps where the employee goes through GPS on a mobile device
  • Screenshots conference calls with other employees

Satariano says:

“The technology raises thorny privacy questions about where employers draw the line between maintaining productivity from a homebound work force and creepy surveillance.”

Shared Use Devices Give Employees Glimpses of Employees’ Personal Lives

However, not everything the productivity app captured was work related. Satariano related one occasion when he had not logged out of the app and it captured him participating in an internet exercise class. This raised concerns for him about what would happen if he had used his work computer to view medical documents or financial information.

“I trust Pui-Wing, but the monitoring systems have few safeguards to prevent abuse, and they rely on managers exercising judgment and restraint.”

That lack of safeguards makes the productivity app a tool for managers and bosses looking for ways to manipulate their employees. A stray email or even an advertisement could give a boss key information about an employee’s personal life and expose that employee to discrimination or online sexual harassment. Here’s a hypothetical example.

How Productivity Tracking Apps Could Turn Into Sexual Harassment

Let’s assume that Alice is a newly home-based worker for a company that has just begun using Hubstaff. She doesn’t have a company-assigned laptop, so she has been using her personal computer for work. Her boss, Bradley, requires her to install Hubstaff on that computer and to log in and out each day.

In the course of the day, Alice opens her personal email during lunch. She receives an email from a clothing company about a lingerie sale. Curious, she clicks. Now, the search engines and ad targeting algorithms know she’s looking for bras. When Alice logs back in to work, the targeted ads keep showing her women’s underwear. In an office setting this might be slightly embarrassing, but the chance a manager would see the misplaced ads would be minor. However, because Alice’s company is using a productivity app, everything Alice does on her computer is captured and presented to her manager for review.

When Bradley goes over Alice’s Hubstaff report, he can see the ads even though Alice was logged out while she was shopping online. Bradley threatens to report Alice for looking at indecent pictures on company time. He says that unless she agrees to an intimate video conference call he will send the pictures of bras to his boss and recommend disciplinary action.

Responding to Sexual Harassment of Remote Workers

This kind of quid pro quo sexual arrangement — where Bradley demanded sexual favors from Alice to avoid negative employment actions — falls clearly in the category of sexual harassment. Other productivity apps that use a computer’s webcam could also result in sexual harassment claims based on stalking or unwanted surveillance. However, many employers won’t have taken the time to develop strong anti-harassment policies for their newly remote workers. If an employer fails to respond to claims that a manager is using the company’s productivity app for sexual purposes, it could open the company up to a complaint with the Equal Employment Opportunity Commission (EEOC), the New York State Human Rights Commission, or even in federal or state court.

However, sometimes it doesn’t have to go that far. The current working climate means that many employers are making adjustments on the fly. They may be more receptive to constructive criticism about their new work-from-home policies than if an employee was trying to challenge an established way of doing things in the office. This can work in favor of the employee who doesn’t want to lose their job just for filing a complaint.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all kinds of employment discrimination cases, including those involving remote workers. We know when to file a claim with the EEOC and how to make the New York State Human Rights Law work for work-from-home employees. We also know that sometimes a well-placed letter or phone call can get employees the relief they need. Contact us to schedule a consultation at our office in New York City, or over the phone.

Southern Baptist Convention Ejects Church Over Sex Offender Pastor

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Earlier this year, the Southern Baptist Convention, the largest Protestant denomination in the country, expelled a small church in Texas because its pastor was a known sex offender. This was the first action taken under the denomination’s new sex abuse protocols. But advocates say it isn’t enough to respond to the wave of complaints against evangelical pastors and churches in Texas and across the country.

Evangelical Families Speak Out About Sex Abuse by Pastors

Last year, in the midst of a host of complaints about sex abuse in the Catholic Church, one Evangelical family was saying “Us Too.” Christi Bragg and her family went to the New York Times seeking help after her daughter (now an adult) reported that a church associate children’s minister had sexually assaulted her at a church camp.

The Braggs attended one of the most popular Southern Baptist churches in the country, Village Church. While they were members, in 2012, the Braggs’ daughter, age 11 at the time, attended a summer camp hosted by the Village Church. She said she woke in her cabin to find her undergarments pulled down and youth minister Matthew Tonne sitting on her bed touching her. A light turned on in the bathroom nearby and the man left.

As a result of the abuse, the Braggs’ daughter suffered emotional trauma, nightmares, and depression. She had gone through hours of counseling and medical treatments. At one point she even considered suicide, but decided not to kill herself so her sisters would not find her dead.

The Braggs’ daughter first reported the incident to her mother in February 2018. She immediately filed a police report and alerted the church. However, neither the church nor the Southern Baptist denomination had clear rules for how to deal with sex abuse allegations. While the criminal investigation continued, Ms. Bragg fought to get the church to recognize what had happened to her daughter and their family, or even talk to her.

Membership Covenant Stands Between Victims and the Courts

The Village Church and others within the Southern Baptist denomination, require their members to sign a Membership Covenant — a contract promising to follow the rules of the church. The Membership Covenant the Braggs signed promised that they would “practice complete chastity” except within a heterosexual marriage, and “diligently strive for unity and peace within the church.” It also included a binding arbitration clause.

That clause said that members could not sue the church. Instead, they had to go through mediation and arbitration to resolve any disputes. But when the Braggs attempted to mediate their concerns, no pastors participated, and no resolution was reached. The Bragg daughter (now an adult) has filed a lawsuit despite the arbitration clause, but its outcome is uncertain.

In the meantime, the church had removed Mr. Tonne, not for sex abuse, but a claimed alcohol problem. According to the church, the problem had been resolved because Tonne was no longer an employee. He had been indicted and criminal charges were pending against him, but the church leaders did not even tell the congregation why.

Southern Baptist Convention Adopts Sex Abuse Policy

The Braggs are far from alone in their struggle. In early 2019, the Houston Chronicle published an investigation naming 400 Southern Baptist leaders who had been accused of sexual misconduct or crimes against more than 700 victims since 1998.  Still, sex abuse was seen as a Catholic problem. It was not until June 2019, at the Southern Baptist Convention annual meeting, that the denomination finally addressed the problem in a concerted way.

With protestors and advocates picketing outside the venue, the denomination leaders passed two policy changes. They voted to create a centralized committee to evaluate allegations and amend their constitution to allow churches to be expelled if sex abuse allegations were substantiated (proven). The denomination’s president, J.D. Greear, called for the new committee to investigate 10 churches for how they had handled sex abuse allegations against them. Seven of those 10 churches were cleared within days.

Church Ejected Over Sex Offender Pastor Isn’t Enough, Advocates Say

But the policy was not entirely fruitless. In February 2020, one year after the Houston Chronicle report was published, church leaders voted to eject Ranchland Heights Baptist Church from the Souther Baptist Convention.

The church was removed after hiring pastor Phillip Rutledge. In 2003, before working for the church, Rutledge was convicted of sexually assaulting two girls, ages 11 and 12. As a result of that conviction, Rutledge is a lifelong registered sex offender. His status is publicly accessible on the Texas Department of Public Safety’s website. Local church officials had previously admitted that they knew of Rutledge’s conviction when they hired him. A church deacon said the leaders believed that God had forgiven him.

The church’s ejection was the first step in enforcing the Southern Baptist Convention’s new sex abuse policy. But victims’ advocates say it is not enough.

“I’m grateful to see this step being taken,” Rachael Denhollander, who advises the denomination in its sex abuse study group, said of Tuesday’s decision. “At the same time, this is only the smallest of first steps and the beginning of what is needed to make our churches places of safety and refuge.”

In fact, the denomination has taken the position it cannot even enforce employment standards against sex offenders. It says that because each member church is its own legal entity, the denomination does not hire or fire pastors. The denomination also refuses to disclose how many complaints the review committee has received, perpetuating the same culture of secrecy the Braggs fought against at the Village Church.

It is not enough for a single church to be removed because of a bad hiring decision. Church members turn to their pastors and their denominations for support during their darkest times. When those pastors are the ones committing the sex abuse against their church’s children, they and the denominations that support thm must be held accountable for their actions.

At Eisenberg & Baum, LLP, we have a team of attorneys who know how to fight back against sex abuse and sexual harassment. Led by Attorney Adriana Alcalde, our sexual abuse attorneys will stand beside you, even against your church or denomination. We will work hard to help you navigate the courts, and any Membership Agreements, to make sure your family receives the justice you deserve. Contact us today to schedule a free consultation.