Sexual Harassment in the Nonprofit Workplace

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Nonprofit leaders have an obligation to prevent, investigate, and address sexual harassment. Harassment can take place in nonprofit workplaces, and board rooms. Nonprofit organizations, and potentially board members, can face legal liability for violations of state or federal laws that prohibit sexual harassment. State and federal laws also prohibit retaliation against someone for complaining about sexual harassment, or other types of illegal discrimination. As discrimination in all forms is antithetical to our nation’s recognized public policies, discrimination and harassment have no place in a sector dedicated to "public benefit." The resources that follow are applicable whether your organization is a public charity or a private foundation, and whether you are a board or staff member, a donor, a consultant or even a vendor to a nonprofit organization.

Disclaimer: The resources on this website are not legal advice and should be viewed as educational resources only. The National Council of Nonprofits encourages nonprofits to seek assistance from qualified professionals for guidance on compliance with federal and state laws. 

What is sexual harassment?

Sexual harassment, among other types of discrimination, is defined by state and federal laws. The US Equal Employment Opportunity Commission (EEOC) is the federal agency that regulates and investigates sexual harassment. Here is how the EEOC defines sexual harassment:

It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

As the EEOC definition above reminds us, sexual harassment is gender neutral. People of the same sex can sexually harass each other, although for a violation of Title VII (federal law) the harassment must be based on sex. Sexual orientation and gender identity are protected under many states’ laws. Additionally, as the above definition stresses, the harasser does not have to be the supervisor of the person claiming harassment, nor does the harasser even have to be an employee of the nonprofit. This means that preventing harassment requires looking at the workplace in the broadest possible sense. Conduct that occurs out of the office, in the community, by a volunteer (including board members) or even donors – can result in illegal harassment and potential liability for the nonprofit.

Many state laws have their own definitions of sexual discrimination and sexual harassment and are broader than federal law because they apply to workplaces where there is only one employee. Some states also impose special compliance requirements, such as training mandates: Some examples: In the following states employees must receive sexual harassment training: Colorado and Vermont (applies to all employers); California and Connecticut (applies to employers with 50+ employees); Maine (15+ employees); New Mexico (secondary school employees only); and Massachusetts’ (6+ employees). Of note, California’s supervisors must receive training that includes awareness about “abusive conduct.”

  • Accordingly, it is very important to check your own state’s law before drafting policies or deciding how to approach sexual harassment awareness education programs for your nonprofit.

What can we do to prevent sexual harassment at our nonprofit?

There are many things that nonprofit leaders can do to prevent sexual harassment. Here are a few.

  • Focus on Culture: A culture that stresses both respect and accountability is one of the best preventative shields for harassment of any type. Supervisors and co-workers who sincerely respect one another will ask before touching one another; will not use verbally demeaning or offensive language with, or about, one another; and will think twice before sending a co-worker into a situation that may expose the colleague to a hostile work environment. Similarly, a culture that stresses accountability will help empower employees to raise concerns and underscore the nonprofit’s commitment to investigate complaints promptly and thoroughly (which includes providing feedback to the person who made a complaint - rather than leaving that person wondering what steps were taken in response to the complaint). Every employee can be held accountable for upholding a culture at work that rejects harassment. Similarly, the entire board of directors is accountable for the work environment, and the conduct, of the CEO/executive director. As the definition of sexual harassment from the EEOC makes clear, accountability needs to go beyond supervisors. The nonprofit’s policy against sexual harassment should hold all individual workers and volunteers accountable to make sure that their own conduct is not unwelcome and does not contribute to a hostile workplace or constitute illegal harassment. Other elements of accountability include defining the consequences for violations of the nonprofit’s anti-harassment policy and responding consistently whenever a complaint is brought forward.
  • Policies and procedures: It should be a given that each nonprofit should adopt a written policy that prohibits harassment of any sort and prohibit any retaliation against those who raise concerns/complaints. Make sure that board members and other volunteers are familiar with the policy, as well as the process for reporting violations of the policy. (A discussion of what should be included in the policy and links to sample policies are below.) Because of variations in state laws prohibiting harassment, nonprofits should be sure to enlist assistance in drafting policies from someone familiar with the employment laws in the state(s) where the nonprofit operates. Note that some advice or even free legal assistance may be available from the nonprofit’s Directors’ and Officers’ liability insurance broker/agent/carrier, since it is in insurance carriers’ best interests to help their insureds comply with employment laws. The policy should clearly outline the procedures to follow to report a violation of the policy, identifying to whom reports should be made. It’s a mistake to create too narrow of a reporting policy. Example: The nonprofit’s policy should not require victims to report allegations of harassment to only one person since that person could be the allegedly harasser. Finally, the policy should clearly state the consequences, such as: “Violations of this policy will include discipline up to and including termination of employment.”
  • Training: Some harassment occurs because harassers are not sensitive or aware that their conduct is unwelcome. Training can build awareness about prohibited conduct and can also familiarize everyone about the procedures that are in place to protect victims, investigate allegations, and address violations. Team-building exercises and workplace learning programs designed to raise awareness about unconscious bias, diversity, inclusivity, and equity are positive ways to build a more aware and respectful culture in your nonprofit. Raising awareness about what constitutes “unwelcome” conduct (or conduct that creates a “hostile” environment) is often an eye-opening experience that serves as a building block for improved internal communications and more confident interactions between individuals in the workplace. Don’t forget to include volunteers and board members in the training opportunities. Sources for training include law firms and human resource firms that specialize in employment law; insurance carriers; and nonprofit-centric educational programs such as those offered by state associations of nonprofits. Since for-profit companies regularly conduct training for workers, consider using your nonprofit’s contacts in the community to ask whether the nonprofit’s staff members can participate in a training that is taking place for the employees of a local business.
  • Orientation: Set the expectations for conduct early: new staff, volunteers, and board members should learn about the nonprofit’s policy prohibiting harassment and retaliation and where to report concerns within their first days of employment/service. A discussion about sexual harassment during an orientation is easily paired with discussions about the nonprofit’s code of ethics and/or statement of values. It is important for the orientation to include an explanation that retaliation against any employee or volunteer who raises a concern or complaint is expressly forbidden, explain the process for raising concerns/filing a complaint, and point out to whom concerns should be directed. 

What does a “zero tolerance” policy look like?

Every nonprofit (even those with only volunteers) should have a written policy against sexual harassment. Your nonprofit can customize the policy as appropriate, but at a minimum the policy should:

  • Define sexual harassment - include the definition from the applicable state law(s);
  • Express “zero tolerance” for sexual harassment, among other forms of discrimination;
  • Commit to a statement that those who violate the policy will be disciplined, up to and including termination of employment;
  • Explain the process for filing a complaint in clear terms, including identifying the persons to whom complaints should be directed;
  • Commit to a statement that the nonprofit will take all complaints seriously and fully investigate any complaint;
  • Also express “zero tolerance” for retaliation against anyone who complains about sexual harassment.

To fully embrace “zero tolerance” and also to protect the nonprofit from legal liability, remember that no one gets a pass: Not donors, not vendors, not the CEO, and not the board chair. Remember, in many circumstances state and federal anti-discrimination and anti-retaliation laws will hold a nonprofit liable even when the harasser is not the victim’s supervisor or not even an employee of the nonprofit.

Reporting sexual harassment

  • Nonprofit employees and volunteers should know they can report instances of sexual harassment in a safe way. When the process for reporting is too burdensome, cumbersome, or just unclear, harassment is more likely to continue unreported, putting more individuals at risk, and making it more likely that the nonprofit employer will eventually face legal liability. Is the process for filing a complaint or expressing a concern accessible to all, easy to understand, and clear? Is everyone (volunteers included) aware how to file a complaint about sexual harassment?
  • The policy should not require complaints to be in writing, or for alleged victims to identify themselves. Any hint of harassment should be investigated. While knowing the names of alleged victims is useful during an investigation, not knowing the names of alleged victims should not stop the employer from looking into the matter. Employers should take ALL complaints seriously.
  • Remind supervisors and managers to report all complaints of sexual harassment regardless of the supervisor’s opinion of the weight of the report and even if the employee asks the supervisor not to tell anyone.
  • The policy should identify more than one individual to whom complaints may be directed. The primary concern is that a reporting process won’t be used if it requires an alleged victim to file a complaint with the person who is harassing the victim. Some nonprofits hire an independent third-party to receive and investigate complaints as the “ombudsperson” for the nonprofit.
  • Consider putting in place an objective third-party reporting system such as a hotline that lets employees anonymously report suspected behavior.
  • Respond to all reports/complaints.

Investigating and responding to allegations of sexual harassment

It is important to respond immediately when an allegation of harassment surfaces, to stop any new acts, and avoid the appearance of apathy, and maintain employees’ trust. At the same time, nonprofits are well-advised not to launch into an investigation of harassment without professional guidance. One of your first calls could be to the nonprofit’s insurance carrier for Directors’ and Officers’ Liability insurance to provide “notice of a potential claim.” This is a smart move for two reasons: first, if your nonprofit does not provide the insurance company with notice, the company will not have the opportunity to mitigate or address a potential claim. As a result the insurance company has grounds to refuse to cover any resulting liability. Second: usually the insurance carrier will have an incentive to assist the nonprofit in avoiding legal liability, and may offer resources and expertise, potentially even advice of legal counsel. Another call may be to hire professionals such as a human resource firm or a law firm experienced with conducting investigations of this nature. Alternatively, the nonprofit may decide to conduct the investigation with its own staff but should do so with caution, guided by informed legally sound resources. Investigations should be swift, fair, documented, thorough, and as confidential as possible. Strive for consistency and consider how best to provide “due process.”

Practice pointers for responding to sexual harassment allegations

Next steps

At some point the nonprofit will conclude the investigation, determine whether there are any consequences for the alleged victim and harasser going forward, and communicate with all involved. Be aware that any negative performance appraisals of the alleged victim in the months or even years that follow could be perceived as retaliatory. On the flip side, any advances, promotions, or accolades given to an employee found to have engaged in prohibited harassment, unless counter-balanced by appropriate discipline for having violated the nonprofit’s policy, could be seen as condoning the harasser’s conduct. A written summary of the resolution should be prepared and shared with the alleged victim/harasser(s) involved and the board of directors. The nonprofit should also be prepared for the possibility that its internal investigation will not resolve the alleged victim or alleged harasser’s concerns. Even if the nonprofit does not have a separate “grievance policy” the nonprofit should consider how to handle the situation should either party not agree with how the nonprofit resolved the investigation.

Resources

Sample Policies

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