Sexual Harassment by Board Members: Protecting the Association and its Staff

4 min

Consider the following scenario: A male Board member of your association makes inappropriate comments to, or takes other inappropriate actions directed at, one of your association's female staff members at a reception during the association's annual conference. Unfortunately, this scenario is not terribly uncommon. In this case, can the association be held liable for the sexual harassment by one of its Board members of one of its staff members? It most certainly can. Moreover, it is possible that, in this instance, associations may be subject to strict liability for such harassment - with no affirmative defense available to the association.

Associations have become increasingly familiar with minimizing the risks of employee-to-employee sexual harassment in the workplace, but associations tend to be far less familiar with the risks of volunteer leader-to-employee harassment - both how to proactively minimize the risks and what to do if and when harassment occurs. The latter is the focus of this article.

Assuming the statutory minimum number of employees is met, associations are subject to the equal employment opportunity laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment, and relevant state laws. Under those statutes, the association/employer has an obligation to protect its employees from harassment and discrimination based upon various protected characteristics. This includes harassment and discrimination perpetrated by Board members.

Sexual harassment is a particular area of concern for associations, as for other employers. Ordinarily, under the landmark U.S. Supreme Court holdings of Ellerth/Faragher, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), employers have an affirmative defense to liability for the harassing conduct of supervisors and management only where: (1) no tangible job action (such as a demotion or a termination) occurred; (2) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (3) the employee unreasonably failed to take advantage of the preventative/corrective opportunities provided by the employer or to otherwise avoid harm. "Reasonable care" on the part of the employer can take the form of an established and well-published anti-harassment policy that is consistently and promptly applied.

Significantly, however, under recent case law construing Ellerth and Faragher, the affirmative defense is not available when the harasser is, him or herself, so high up in the managerial structure that he or she may be considered to be the "alter ego" of the employer. See e.g., EEOC v. Robert L. Reeves & Assoc., P.C., 2003 U.S. Dist. LEXIS 24701 (C.D. Cal. 2003) (finding that the founder, chief executive officer, president, director and shareholder of the firm was the firm's proxy/alter ego and, therefore, the affirmative defense was not available to the firm). Based on this case law, in some circumstances, members of the Board of Directors may actually be considered to be alter egos of an association, such that the association could be held strictly liable for harassment by Board members against employees - with no defense available.

Another important consideration for associations is the treatment of their members. While association members generally are not employees of the association, the EEOC and some courts have taken the position that "interference" with the employment opportunities of any employee can result in liability under the anti-discrimination laws. Association policies should explicitly prohibit employees from harassing or discriminating against members and other third parties (such as vendors).

As a result, associations, like other employers, need to ensure they have strong anti-harassment policies in place. The actions of Board members should be covered by these policies, and associations should acquaint Board members with the requirements of the policies and their importance to the association. Complaints by employees or by association members should be investigated and addressed promptly, objectively and consistently, regardless of whether the complainant is willing to "write up a complaint." Finally, Board members who violate the policies must be subject to corrective action, just like employees. In this way, an association can help safeguard against harassment in its operations as well as the potential for costly litigation resulting from it.