Harassment, sexual and otherwise, is a hot topic today, and association boards across America are calling for codes of conduct to protect their organizations from harassment complaints at their events. “I want to say, ‘not so fast,’” said Paula Cozzi Goedert, a partner in the Chicago office of Barnes & Thornburg LLP, in a session at this year’s Professional Convention Management Association’s Convening Leaders conference. Goedert, who chairs the Associations and Foundations Practice Group, added, “It’s not so simple. The big question is, if someone engages in that conduct—or someone alleges that someone engages in that conduct—what are you going to do about it?”
What’s in Your Power?
Organizations have several ways to deal with attendees accused of harassment. “You have the power to eject people from your meetings. You have the power to ban them from future meetings. And you may have the power to remove them from membership. That gives you a lot of leverage over the accused,” said Goedert.
But don’t go wielding that power before first giving the matter some consideration. In the U.S., judges have what’s called judicial immunity, meaning that, unless they do something egregiously wrong such as taking a bribe, they can’t be punished for getting it wrong. Your organization and your board can be.
If a meeting organizer ejects or bans someone and it turns out that the accused was innocent, that person can come back and sue you for business defamation for having ruined his or her reputation among your small community of widget manufacturers, said Goedert. “You could be liable for a large amount of damages,” especially since the Federal Trade Commission considers the ability to attend a business conference and membership in a business or professional association to be a valuable business right.
But How Could You Get It Wrong?
Goedert outlined three examples from her clients’ experiences that show just how murky determining what really happened can be.
Example 1: A female attendee accuses a male attendee of holding her too closely while dancing, saying it amounted to sexual harassment. She had a witness who backed her up. The investigator, however, thought it was a little strange that both the complainant and the witness used the exact same words to describe the incident, for which the accuser wanted the accused banned from future attendance and from the association membership.
When the investigator called the accused to get his side of the story, he said he’d be glad to talk—with his attorney present. When he called back with his attorney on the line, he said the female attendee was actually the aggressor, and when he finally said he’d dance with her, she made him uncomfortable and he left.
“Whose side do you believe?” asked Goedert. “Even with the witness, it’s almost impossible for the association to know who’s right.” Because the alleged offense was fairly slight, they just told the alleged harasser to stay away from the accuser, something he was more than happy to do. “We told the complainant that he denies the accusation but he agrees to stay away from you, and that was the end of it.”
Example 2: A female attendee goes to a bar after conference hours with a male attendee who said he wanted to talk with her about a potential job. After drinking at the bar from 10 p.m. to 2 a.m., he walks her back to her hotel and suggests a possible next activity up in her room, which she declines. He leaves. She asks the association to do something about it.
Goedert said that when the association asked for his side of the story, the accused said they had a date, and that he had hoped for more, but she said no and he left. End of story. Ultimately, what could or should the association do, asked Goedert, when the incident didn’t occur at the meeting; there were no witnesses; and the accused denies the allegation?
Example 3: A conference attendee reports hearing another attendee tell a woman, “You have nice legs.” The attendee believes it’s harassment and that the accused should be banned from the association’s future conferences.
When the alleged harassee was contacted, said Goedert, she had no idea what they were talking about. “People mishear and misunderstand,” she said.
Protect Yourself with Due Process
“Here’s what you need to know,” she said. “You don’t have the right to throw people out of your meeting or membership or prohibit them from coming back unless you give the accused due process.” Due process includes a right to a hearing. “It doesn’t have to be a trial, but they have a right to be heard, a right to counsel, and a right to an appeal. It can’t just be one person saying, ‘You’re out.’”
This, she said, is why she advises her clients not to institute codes of conduct for meetings. “Because people will come to you expecting that you will do something about it, and that’s going to put you in the middle of a mess.”
If You Must Include a Code of Conduct…
• Don’t overpromise. Say, “The widget manufacturers association expects professional conduct at all times while at sponsored events.” You’re setting expectations, but not rules your organization will enforce. And those expectations are that attendees will behave professionally.
• Don’t take responsibility beyond your purview. By saying “at sponsored events,” you’re making it explicit that what happens at 2 a.m. after bar-hopping, for example, is out of your realm of responsibility. Instruct them to call building security or dial 911 if they feel threatened, not your conference staff. “It takes you out of the middle of saying that we’re going to protect our attendees from all the vicissitudes of life.”
• Build in due process. For clients who insist on having an enforceable code of conduct, Goedert suggests including the accused’s right to be heard, represented by legal counsel, and to appeal. She draws up a complaint form that says, “in big bold letters” that a copy of the complaint will be given to the accused. That tends to stop those with false accusations in their tracks, she said. “The people who are serious about the complaints will follow through.”
• Don’t use vague and impossible-to-enforce language. Goedert shared two examples from actual client proposals:
• “Verbal or written comments that reinforce social structures of domination are prohibited.”
• “Interfering with another’s autonomy by attempting to make decisions for or control another’s independent action is prohibited.”
Another piece of good advice: Since these sorts of problems tend to intensify when alcohol is being served, “Never serve without licensed bartenders,” she added.
And, if something is happening in real time, handle it in real time. March over to the accused and ask him or her to cut it out. “His face will likely turn deep red and he’ll deny it. You can say, ‘Glad to hear it—don’t do it again.’ That puts a stop to most of it.”