The #MeToo movement has brought increased reporting of sexual harassment in the workplace and decreased tolerance for wrongful conduct. Associations can be held liable for the conduct of their employees, board members, and organizational members, so leaders need to ensure that the organization has the right policies and practices in place to prevent inappropriate behavior to the extent possible and to address it when it occurs.

What can you do to protect your employees from harassment and protect your association from liability? Several steps are essential.

Maintain Strong Harassment Policies

Associations must review their harassment policies to ensure they have all of the required provisions. Strong policies must prohibit retaliation, provide for confidentiality (to the extent possible while allowing for an appropriate investigation), and implement proper reporting channels.

Frequently, policies require harassment complaints to go to the human resources director. While this is a good start, alternative reporting channels need to be available. For complaints involving executives to whom human resources reports, a strong policy provides for alternative reporting to the board chair or another specially designated board member. Once the policy is approved, it should be published to staff annually.

In addition to having harassment policies in an employee handbook, associations should consider adopting a code of conduct for the board of directors, and one for members, that includes a prohibition against harassment. The member code should be published on the association’s website and in other communication platforms, as well as in registration materials for conferences and events.

Train Staff and Board Members

In order for policies to be followed, organizations must train their employees—but managers should have different training from nonsupervisory staff. Training for non-managers should describe prohibited conduct and explain what to do if they witness or become the victim of harassment. They also need to understand what is not harassment.

Managers are held to a higher duty under the law. Accordingly, they should be trained with the rest of the staff but also receive separate management training that defines their duties and obligations in handling harassment claims.

Finally, because board members can create liability for the association based on their own conduct, they should be trained on harassment laws as well as how to fulfill their fiduciary duties in responding to complaints.

Evaluate Your Policy on Consensual Relationships

Does your association have a policy addressing romantic relationships in the workplace? Harassment claims often arise from good relationships that have gone bad. But are consensual relationships at work ever “good”? This can become particularly problematic when the relationship involves an employee who is subordinate to the other, as the legal question can turn on whether the relationship was ever actually consensual.

In that case, if the relationship sours and the subordinate employee raises a harassment claim, he or she may argue that the conduct was never welcome because it involved a supervisor and the relationship was a term and condition of employment. Even if both parties regarded the relationship as consensual, a jilted supervisor could retaliate against a former romantic partner. This could be a deliberate attempt to punish the other person for ending the relationship, or the unhappy supervisor may try to avoid the other employee, with impermissible workplace ramifications.

Re-evaluating whether your association should allow consensual relationships between staff, especially in a direct-reporting line, is advisable. If these relationships are allowed, consider whether you should implement parameters and a requirement to notify the association when they arise. If such a policy is in place, it must be enforced consistently.

Managers must understand that the law protects from retaliation any employee who complains about harassment or participates in an investigation.

Include Harassment Prohibitions in Executive Agreements

Chief executives frequently have employment contracts with their association. Given the organization’s potential exposure to liability for sexual harassment by executives, consider including provisions in your executive agreements that expressly include harassment in the definition of “cause” that allows the executive’s employment to be terminated if an investigation finds that he or she engaged in harassment. The provision should cover misconduct that occurred before you hired the executive. This allows you to take appropriate action without providing a golden parachute to the alleged offender.

Protect Employees From Retaliation

Retaliation claims can be costly because they are fact-specific and time-consuming to defend. To reduce these claims, associations should be proactive in educating employees about retaliation, including educating managers on how to protect employees from it.

Managers must understand that the law protects from retaliation any employee who complains about harassment or participates in an investigation. This means that any adverse employment action taken after an employee makes a harassment complaint or participates in an investigation should be reviewed carefully to ensure that it has a legitimate business basis.

Treat Employees Equally

Be consist with enforcement of policies, processes, and procedures without regard to gender. For example, an association, out of fear of harassment complaints, might have a written or unwritten policy that avoids mentoring relationships in which men in senior leadership positions act as mentors to female employees. This kind of policy may open the door to complaints of gender discrimination because it may result in fewer interactions between leaders and women employees, resulting in fewer opportunities for promotions, salary increases, and other career advancement. Be conscious of subjective enforcement of policies, processes, and procedures, as well as unconscious biases, to avoid unequal treatment of employees. 

Maintain Essential Insurance

Associations can do all the right things and still find themselves defending a claim of harassment, so it is critical that they have appropriate insurance coverage. In particular, employment practices liability and directors and officers insurance are essential to provide a defense and protect the association, its staff, and its board against such claims. Association leaders should understand what triggers these policies as a “claim” so that they can give proper notification to the insurer when a claim is made.

Investigate Complaints

An organization must respond when it receives a harassment complaint, and the response may entail an investigation. How the investigation should be handled will vary based on the facts of the complaint. For example, if the complaint does not involve a senior level executive to whom HR reports, HR staff can investigate the matter if they have the appropriate training. However, if the matter involves a high-level executive, the association may want to retain an impartial third party to conduct the investigation.

Either way, the investigation should be conducted promptly. The accuser should be advised that the investigation is occurring, and the accused should be given the opportunity to respond to the complaint. Depending on the allegations and the people involved, the association may want to consider placing the accused on paid leave during the investigation.

Take Remedial Action

If the investigation concludes with a finding of inappropriate conduct, the association must take remedial action. What the action may be will depend on the facts of the complaint; there is no one-size-fits-all approach.

Remedial action against the offender may be as drastic as suspension, demotion, probation, or termination, or it may be something less, such as a training or counseling requirement. The selection of the appropriate remedy should take into account whether the accused has a history of similar conduct and whether the behavior was intentional. The key is to take appropriate action to avoid a repetition of the misconduct and to send a message that this behavior will not be tolerated.

The greater awareness and increased reporting of sexual harassment that the #MeToo movement ushered in provide an important opportunity for employers to ensure they are protecting their employees from misconduct and their organization from legal exposure. Associations should use this time to review their policies and procedures to make sure they are taking the right steps to minimize liability in their organization.