Sexual harassment has long been an epidemic whose immense scope we, as a society, have only recently recognized. No industry has been spared, as Hollywood, government, media, food, tech, and nonprofits have struggled, and continue to struggle, with sexual and other harassment scandals.
Harassment in the workplace harms more than its direct victims. For nonprofits, a harassment scandal will not only erode public trust, a vital aspect of an organization’s support and success, it will also demoralize employees in a way that contravenes our shared values of equal opportunity. The harm reaches beyond lawsuits and fines — it can devastate an entire organization and the communities the organization works with and serves.
The nonprofit sector, the third largest employer by industry, is associated with serving the public interest and seeking to address and alleviate vast societal problems. The public expects nonprofits to go beyond simple legal compliance with respect to preventing and addressing sexual harassment. Such expectation, and more importantly, the values of social good espoused by most nonprofits, demand that nonprofits strive to be exemplary in how they create and cultivate an organizational culture that does not tolerate harassment of any kind.
Leaders of nonprofits cannot passively hope that their workplaces are free of harassment, in reliance on the belief that only good people work in the nonprofit sector. Harassment can occur in any workplace, and it will not stop on its own. Nonprofits must address harassment willfully and take thoughtful and reasonable steps to mitigate the risks.
Create an Environment Where Reporting Can Happen
As a first step, an organization should seek to create an environment that strongly supports reporting. One key here is to eliminate barriers that discourage victims from reporting, such as fear of blame, retaliation, and inaction on, or disbelief of, their claim.
Nonprofits should create open door reporting policies, where victims of harassment have a variety of identified mechanisms to report exploitative behavior to supervisors, a human resources department (HR), and/or the board. Among the considerations in creating appropriate reporting mechanisms is how an employee might best report harassment by the executive director, president, board chair, or CEO. Even before harassment reaches a legally-actionable level, managers and supervisors should know how to respond judiciously and effectively to behavior that they observe themselves, is reported to them by a victim or a witness, or of which they have knowledge or information by other means.
Workers will feel more supported if, based on policies and action, they are certain that accountability extends to managers and supervisors. For example, performance review criteria should include how well the manager or supervisor established a respectful team culture and, where applicable, responded to reports of harassment. Soliciting employee feedback about how well their managers and supervisors (including the CEO) perform in these areas, and rewarding managers for dealing with complaints reasonably and responsibly, can send a message throughout the organization about what is truly valued.
A growing practice, both formally by organizations and informally by employees who are frustrated by inaction, is to conduct a confidential survey to determine whether harassment is occurring in the workplace and, if it is, how severe is the problem. Even where harassment is not being reported, continually evaluating the environment, addressing risks preemptively, and establishing a dialogue between employees and leadership are important steps in creating a healthy workplace culture.
Implement Effective Anti-Harassment Policies
One of the most important ways to protect an organization from liability for workplace harassment is to have, and enforce, a coherent anti-harassment policy. In creating an anti-harassment policy, an organization should first look to its mission and values and review its history on harassment. Are there specific situations in which harassment has occurred? If there are, how do they inform current risks and preventative steps? Keeping the organization’s practices, norms, and values in mind, what types of conduct will not be tolerated? Anti-harassment policies are not one-size-fits-all, and once in place, allowing exceptions to the policy (e.g., for certain high performing individuals) can render it meaningless.
Beyond harassment occurring purely in an employee context, consider how the organization might address harassment by donors (e.g., should the organization’s gift acceptance policy also include a provision about refusing a gift in such situation?). How will the organization handle harassment by (or directed at) volunteers, including board members, who are not employees? While, generally, under California law, employers must protect volunteers from workplace harassment and discrimination (see, e.g., Cal. Gov. Code §12940), other states may not require such protections. However, the risks associated with tolerance of harassment go beyond breaking the law, and reasonable protections should be in place for all of its agents. We will address harassment outside of the pure employee context in a future post.
As a baseline for employee-related harassment, the Equal Employment Opportunity Commission (EEOC) recommends that a policy generally include:
- A clear explanation of prohibited conduct, including examples;
- Clear assurance that employees who make complaints or provide information related to complaints, witnesses, and others who participate in the investigation will be protected against retaliation;
- A clearly described complaint process that provides multiple, accessible avenues of complaint;
- Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
- A complaint process that provides a prompt, thorough, and impartial investigation; and
- Assurance that the employer will take immediate and proportionate corrective action when it determines that harassment has occurred, and respond appropriately to behavior which may not be legally-actionable “harassment” but which, left unchecked, may lead to same.
Importantly, an organization should ensure that its policies are clear and written in such a way that is understandable to the reader, including in other languages used within the organization. Organizations may also want to review whether their whistleblower policy is broad enough, and reinforces, the organization’s policy to protect whistleblowers of sexual harassment from retaliation.
Educate through Trainings
In California, employers (including nonprofits) with at least 50 employees are required to provide regular and legally compliant sexual harassment and abusive conduct prevention training for all supervisors. Regardless of whether your organization is required to provide training under the law, now is a good time to review whether the organization is simply checking a box with respect its training requirements, or really putting thought and resources behind its efforts to educate employees, supervisors, and leadership.
There are various types of training for an organization to consider. Compliance training is intended to clearly educate workers about the organization’s anti-harassment policy (e.g., what to do if they experience unwelcome behavior, how to report such behavior and to whom, how the organization will investigate it and keep the worker informed) and the forms of unacceptable conduct in the workplace. Workplace civility or sensitivity training goes further to teach employees about interpersonal communication, such as how to be respectful of colleagues, how to provide feedback about unwelcome behavior, and how to respond if they receive such feedback themselves. Managers and supervisors, in particular, should be trained on emotionally intelligent responses to complaints of harassment and how to speak with workers who are initiating problematic behavior. An organization might also consider bystander intervention training, which can help employees further identify unwelcome and offensive behavior when not directed at them, and to encourage intervention with appropriate responses, and reporting, and without fear of retaliation.
Employers have a legal obligation to conduct prompt and thorough investigations of claims of harassment, regardless of the manner or method the organization learns of the conduct. Very generally, the obligation to act is triggered as soon as a manager or supervisor learns of a complaint. A “formal complaint” (i.e., requiring that the victim reduce the complaint to writing) is not required. It’s therefore critical that all managers and supervisors communicate the complaint consistent with a documented policy to allow for the organization to properly and timely respond to the complaint and determine appropriate next steps, including the nature, scope, and time of the investigation.
Managers and supervisors should also be trained on how best to deal with some common situations, such as when the victim asks to keep the complaint confidential, wants the manager to promise no action will be taken or that no one will get in trouble, or fears imminent harm. Likewise, it’s helpful if employees are trained to understand that even unsolicited verbal complaints of harassment will be taken seriously by the organization, and that while the investigation will be kept confidential to the extent possible, a manager or supervisor has an obligation to notify appropriate individuals within the organization of the facts of the complaint for investigation.
Effective communication can go a long way to prevent, and promptly address, workplace harassment. An organization may create an HR committee to establish a direct line of communication between the board and management about harassment issues and policies. If the nonprofit is large enough to employ an HR supervisor, consider giving such person a seat at the table on the leadership team with direct reporting to the CEO and, under certain circumstances, the board.
Once an employee reports harassment, keep that employee informed about the status of the investigation. Alienating a victim from information about the progress of her or his claim can cause further anxiety and frustration. Furthermore, providing appropriate updates can sometimes help to diffuse the situation and demonstrate that the organization is taking the complaint, and corresponding inappropriate behavior, seriously.
As the #metoo movement has proven, there is a public distaste for confidentiality with respect to workplace harassment. “No comment” is no longer an acceptable response. While an organization may have defamation concerns to consider and manage, if an investigation has found that harassment actually occurred, such risk may be minor compared to the harm that may result from the perception that the organization is hiding the problem or protecting the perpetrators. Organizations should be prepared, seeking assistance when necessary (e.g., from an employment discrimination attorney and a public relations professional), to equitably comment about instances of harassment to the organization’s workforce, its donors, and the public.
Work Towards Diversity Across the Organization
Not surprisingly, the EEOC stated in a recent report that harassment is more likely to occur where there is a lack of diversity in the workplace. The EEOC also identified risk factors that tend to increase the likelihood that employees will be harassed including, a homogenous workforce, having only a minority of employees who don’t conform to societal stereotypes or workplace norms, workplaces with significant power disparities, workforces made up of many young workers, among others. Thus, striving for diversity organization-wide, from the board to the leadership team to the employees, may be one of the most important steps forward.
Nonprofits should devote sufficient resources to harassment prevention efforts, not only to help ensure that such efforts are effective, but also to reinforce the organization’s commitment to creating a workplace free of harassment. It is imperative that a nonprofit’s treatment of its staff align with its mission and core values.