Julia E. Judish
Julia E. Judish is special counsel at Pillsbury Winthrop Shaw Pittman, LLP, in Washington, DC.
Associations have a responsibility to provide a safe, harassment-free environment at their conferences and other events. Following a few best practices can help organizations avoid legal liability and ensure positive experiences for all participants.
The opportunity to participate in annual meetings, conferences, tradeshows, and other association-sponsored events is often a primary motivation for members to join associations. These events allow members—whether participating as speakers, exhibitors, or attendees—to stay abreast of the latest developments in their industry or profession, to connect with colleagues, and to develop valuable business and career relationships.
Unfortunately, sexual harassment incidents at such events can create liability for the association and, for anyone subjected to or witnessing the harassment, turn the event into a negative experience. Keeping their events harassment-free should be a top priority for all associations. Understanding their legal obligations and adopting best practices can help achieve that goal.
Any incident of sexual harassment at an association-sponsored event may result in assertion of a legal claim against the organization. Different standards of liability will apply, however, depending on the individuals involved and the circumstances in which the incident occurred.
Harassment of association staff. An association has the strongest legal duty to protect its own staff from harassment when they are working at its events. Employees can bring a hostile work environment claim under federal law and most state and local laws if subjected to sexually harassing comments or conduct at work, whether the harasser is a fellow employee or a third party—such as a member, vendor, or conference venue staffer—with whom the employee interacts as part of his or her work duties.
If the harassment is sufficiently severe, such as unwelcome groping or forced kissing, a single incident may establish a hostile work environment. Less severe incidents, such as uninvited sexual comments, if pervasive and unchecked, may also create a legally actionable hostile work environment. An employer has a legal duty to take reasonable action to prevent and correct any incidents of sexual harassment of staff, to establish an effective procedure for reporting such incidents, and to investigate promptly any complaints.
Harassment of contractors. Event staff who are employees of third parties would most likely sue their employer for claims arising from sexual harassment they experience at an association event. Many event contracts, however, include indemnification provisions under which an association assumes liability for losses incurred by the venue or staffing company as a result of the association’s negligence. In addition, depending on the circumstances, event staff who are paid by a third-party employer may nonetheless argue that the association should be treated as a joint employer under the law.
Member-to-member incidents. To prevail on a claim against the association, a member subjected to harassment by another member would need to show that the harassment resulted from the association’s negligence or from breach of the association’s contractual promise to the member. An association risks liability for negligence, however, if it is on notice of a heightened risk of harassment by a member—such as through prior complaints or because association staff witness the conduct—and yet fails to take reasonable steps to protect attendees. Regardless of legal liability, an association risks significant damage to its reputation if members view the organization as creating or tolerating an environment at its events in which members are free to harass other attendees.
Incidents involving volunteers. The duty of care that an association owes to volunteers is, as a legal matter, similar to the duty it owes to members or other nonemployee event attendees. Employees may sue, however, if they experience harassment by volunteers in positions of authority or influence, such as board members, committee members, or other volunteers able to affect staff members’ working conditions and performance evaluations. The risk of claims is higher if an association fails to adopt or enforce a code of conduct for volunteers or otherwise does not take reasonable steps to protect staff from harassment by volunteers.
It is impossible for an association to prevent all instances of sexual harassment at its events. Even in online events, a participant may make sexually offensive comments or engage in trolling of the speaker or other participants. The potential for sexual harassment is even greater at in-person conferences, especially if attendees stay overnight at a hotel and mingle at association-sponsored or impromptu social events at which alcohol flows freely.
Nonetheless, associations that adopt the following best practices can substantially reduce the likelihood of sexual harassment incidents and minimize their legal liability if such incidents occur.
Conduct rules that are ignored or unenforced do little to deter sexual harassment and may in fact create greater liability for the association than if it had never adopted the rules.
Establish enforceable conduct guidelines. Associations have numerous opportunities to set expectations and rules for behavior at association events. Associations should already have anti-harassment policies and complaint procedures in their employee handbooks. Those policies should be reviewed to ensure that they communicate to employees that the association will not tolerate harassment by members and volunteers and to identify how employees can report harassment even if it occurs outside of normal business hours.
Associations should also review any code of ethics or similar rules for members, directors, and volunteers. Some membership rules permit disciplinary action against a member or revocation of membership only for nonpayment of dues, fraudulent use of credentials, or other narrowly defined conduct.
Even if the code of ethics does not address sexual harassment, however, associations can and should establish conduct guidelines for meeting attendees. The guidelines should be published with the registration materials for every event, and the association should reserve the right to eject any attendee who is accused of violating them. Following a reasonable investigation, the association should also have the authority to bar a violator from attending or participating in future events.
Empower employees to avoid and prevent harm. Most associations promote a member services attitude in their employees and encourage employees attending member events to support a positive experience for all attendees. It is critical, however, for association leadership to make clear that employees may decline social invitations from members or attendees without any negative job consequence, and that no employee’s job requires the employee to tolerate uninvited or unwelcome sexual comments, advances, or harassing conduct.
In addition, associations should conduct sexual harassment trainings (required by law in some states) and incorporate a bystander intervention education component in those trainings. The bystander intervention techniques advocated by RAINN (the Rape, Abuse and Incest National Network) can be used to protect against sexual harassment. Bystanders can follow the so-called C.A.R.E. techniques to:
Associations can also instruct employees about steps to take in specific scenarios, such as contacting hotel or venue security to intervene with an aggressive meeting attendee or to escort an inebriated attendee to his or her room.
Differentiate between association-sponsored and other events. In program materials, signage, and announcements, associations should clearly state when social or other events are sponsored by the association and when attendees and employees are on their own time. Association leadership should communicate to all staff attending an event that, while on the premises or otherwise in the company of attendees, they are expected to behave in a way that does not harm the organization’s reputation. With respect to legal liability, however, the association’s duty of care is limited to association-sponsored events.
Walk the talk. Conduct rules that are ignored or unenforced do little to deter sexual harassment and may in fact create greater liability for the association than if it had never adopted the rules. Associations should consistently communicate and enforce their lack of tolerance for sexual harassment at events.
Even if the offender holds a position of influence—a member of the board, a committee chair, or a widely respected member—no one should get a free pass to engage in sexual harassment. In especially sensitive circumstances, calling in third parties to intervene—whether hotel security, law enforcement, or the event bartender—may undercut the offender’s belief that his influence provides him immunity. Third parties also may become critical witnesses if the offender protests disciplinary action or other consequences. Associations may wish to consult legal counsel about appropriate disciplinary procedures to follow in dealing with violations.
By implementing these steps, association leaders may be able to minimize or avoid the distraction, reputational harm, and potential liability of sexual harassment incidents at their organization’s events.