Vol. 43, No. 1

How can the board of a bar association prevent and respond to sexual harassment?

By Michele Berger

About Michele Berger

Michele Berger, an associate at NEO Law Group and a frequent contributor to the firm’s Nonprofit Law Blog, is a nonprofit and exempt organizations attorney. She has assisted clients with nonprofit formation, exemption, charitable registration, fiscal sponsorship, property tax exemption, international grantmaking, bylaws review, and on various governance matters. Michele has also led seminars for emerging nonprofit leaders, presented for The Foundation Center, produced short videos on startup issues, and co-authored articles for The Nonprofit Quarterly and the Alameda County (Calif.) Bar Association Blog.

Sexual harassment has long been an epidemic whose immense scope we, as a society, have only recently recognized. In this climate, organizations of all kinds may be looking internally, questioning whether a harassment or other scandal could affect them, and measuring whether the organization has effective policies and mechanisms in place that can help to prevent and/or address sexual and other types of harassment.

While many expect the legal profession to be exemplary in its compliance with laws regarding harassment and discrimination, that unfortunately has not been the case. Some reports suggest that harassment in the legal industry is occurring at an even higher rate than the workplace average. Furthermore, statistics show the continuing power disparity for women in law, with women making up less than a quarter of partners at big firms and general counsel at Fortune 500 companies (even though just over 50 percent of law school graduates are women).

For a bar association, an internal harassment or discrimination scandal will not only create the array of problems it would for any organization, but it will also erode trust of the legal profession, both internally and externally, and demoralize its individual and organizational members and supporters. The American Bar Association recognized the need to improve its harassment policy earlier this year when its House of Delegates approved Resolution 302, which expanded a former policy from 1992, and set forth new standards for enforcing policies and procedures prohibiting harassment and retaliation in the workplace based on gender, gender identity, and sexual orientation.

Given the nature of bar associations, which have many more members than employees, bar leaders must think through how their associations might handle harassment when it occurs both inside and outside of the more well-known areas of employment-related harassment and discrimination. Bar association boards should be prepared in this environment to examine their values, governance structures, and policies, and contemplate the risks associated with their operations, to strive toward a safe, harassment-free organizational culture overall.

Legal duties and potential areas of liability

An association’s principal duty in addressing sexual harassment is to protect its own employees from such behavior. An association may be liable for a hostile work environment claim if an employee is subjected to unwelcome sexual advances or other harassing conduct at work, whether the harasser is another employee, a board member, an association member, a client, or even a vendor.

An association may also have a duty to protect its board members, members, and other stakeholders from sexual harassment. In some cases, when those individuals are harmed, an association may be held liable for its negligence. The key inquiries in such cases may be whether the association’s leaders or employees knew about the harassment, whether such behavior was taking place in a venue or medium controlled by the association, and whether the association acted reasonably to stop or prevent the harassment.

An association’s duties to protect its stakeholders from harassment becomes more complicated when the behavior occurs outside of the association’s facilities, rented venues, or communication media. For example, a member may complain to the association about being harassed by another member at their common workplace or in a space not within the association’s control. In such case, the association may need to consider whether it would be appropriate to intervene, and how. If there are member qualifications or codes of conduct that have been violated, the association might consider suspending or terminating the offending member, but this would need to be managed carefully in light of other risks, including claims of defamation and antitrust. If the harasser is a board member (a director), the political issues may be even more complicated, but removal may be imperative for the association to maintain its credibility.

Boards that think through these types of scenarios in advance and develop appropriate written policies and guidelines, with specific examples, will better equip their associations to address such issues should they arise. A staff member asked to enforce a policy against a non-employee stakeholder will have a much easier time if such policy is written and clear and the staff member knows he or she will have the full support of the association leaders.

Setting the tone

From a governance perspective, it is imperative that the board set the tone from the top. Directors should hold themselves to a high standard, which preferably is memorialized in a code of conduct. If there is an issue with a director, it should be investigated promptly pursuant to organizational policies. Of course, it is much more difficult to enforce a code of conduct against members or conference attendees if it isn’t enforced against the association’s own directors.

The board can take steps both explicitly and implicitly to demonstrate the values of the association with respect to harassment. Explicitly, the board can create sound policies and codes of conduct that clearly articulate what is not acceptable and how harassment will be dealt with within the association.

A board might consider including a performance metric in its review of the association’s executive regarding how the executive addresses complaints of harassment. Are complaints taken seriously and addressed promptly? The board can send a message about how seriously it treats the association’s values when it holds the executive accountable for improperly or insufficiently addressed complaints. Similarly, if striving for diversity across the board is an association value, a board might also consider a performance metric for itself regarding whether there has been an active effort to attract a diverse range of leaders to serve on the board.

Implicitly, one way for the board to show its commitment to creating a harassment-free environment is to allocate appropriate expenditures in the organization’s budget for sexual harassment or sensitivity training and diversity, equity, and inclusion initiatives. Are the directors educated in these areas? Do they feel equipped to represent the association’s values of inclusion and equity? Education is key, and the directors should serve as the examples.

Effective policies

Associations have an opportunity to utilize various organizational policies to set expectations and rules for behavior. These may include a code of conduct for members, a code of conduct for directors, event rules and guidelines, and an anti-harassment policy. In drafting such policies, the board should first examine the organization’s 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? What types of conduct will not be tolerated?

For association employees, policies should carve out a path for reporting and investigation. For example, how can an employee report harassment if it occurs after hours? At a minimum, an employee should know what the process will look like and how to seek help.

The board should consider how state laws (and the organization’s governing documents) inform its ability to address a director or member who has violated an organizational policy. For a director, the board may have the ability to remove the director without cause, and for a member, there may be specific circumstances under which a member may be suspended or terminated.

In drafting rules and guidelines for an event, consider including language that will give the organization the right to eject any attendee who is accused of violating any rule prohibiting harassment. When prudent, the association should also have the authority to exclude a policy violator from attending or participating in future association events.  

Once an organization has crafted effective policies, those policies should be distributed widely—published on the association’s website, provided as part of any conference materials, and posted at events. One important aspect of discouraging bad behavior and encouraging reporting is to educate participants (and put them on notice) about what behavior will not be allowed and how the organization will handle a complaint.

Overall, a professional association’s goal of promoting a common interest means that an organization should act to advance all individuals associated with it. It is inherent within such purpose to strive for and foster a safe, harassment-free environment for all.

Additional tips

  • Always investigate a complaint with appropriate respect of all parties' rights and sufficient independence of the investigating body.
  • Introduce challenging generative questions into board discussions: How can our organization be more inclusive? Is our board representative of our membership and meeting our diversity goals?
  • Even if an investigation doesn't find sufficient facts to warrant disciplinary actions against an individual, use the findings to make changes that strengthen protections and mitigate risks going forward.
  • Consider appropriate allocations of resources that are consistent with organizational values when developing reasonable responses to complaints. 
  • While appropriate only in certain limited situations, consider offering the victim an opportunity for mediation with the accused when the act or behavior is the result of a miscommunication or misunderstanding.