IN THE TRENCHES
By Ronald Hube
As the leader of a nonprofit group that aided victims of sexual assault, Judith Stotland had a lot of responsibilities, including one that might sound surprising: creating a sexual-harassment policy aimed at the charity's employees.
"I had an all-woman office, and you might not necessarily think you need a sexual-harassment policy in an all-woman office," says Ms. Stotland of her tenure as executive director of Project Sister, in Pomona, Calif.
But in the early 1990s, she says, her charity won a federal grant that required its recipients to establish and maintain an anti-harassment policy. "So I wrote it," Ms. Stotland recalls. Back then, she says, far fewer employers than today had sexual-harassment policies. The effort, she says, inspired the charity's board members to follow her example: "Some of them shared it with their own companies and said, 'You might kind of take this as a model for our own policy.'"
The lack of a sexual-harassment policy is a big problem for lots of charities, say observers. David Grinberg, a spokesman for the U.S. Equal Employment Opportunity Commission says all employers need a sexual-harassment policy, regardless of the gender makeup of their staff. Although men are more often accused of sexual harassment, sexual-harassment complaints by men against women are increasingly common. The commission reports that the percentage of sexual-harassment complaints lodged by men against colleagues of both genders increased from 9.1 percent in 1992 to 15.1 percent in 2004. Just last month, the commission sued an airline-service contractor in Illinois, alleging that a female employee harassed a male co-worker for more than a year.
And a sexual-harassment dispute can develop between people of the same sex. "Women can sexually harass other women," says Ms. Stotland, who left Project Sister in 1994 and now works as associate director of development in the San Francisco office of the American Foundation for the Blind.
The Nonprofit Risk Management Center, in Washington, has also sounded a warning, in a report on sexual-harassment liability it issued in 1999: "Sexual harassment is a serious issue that should concern every nonprofit. Workplaces hiring predominantly one gender are not immune."Preventing Harassment
Under the law, sexual harassment in the workplace is a form of sex discrimination. But a nonprofit employer that has a policy against gender bias but no separate prohibition regarding sexual harassment leaves itself open to liability, experts say.
"Except in a few states, the law does not require employers to have a sexual-harassment policy," notes Richard J. Reibstein, a lawyer in New York who specializes in labor and employment cases. But "sexual harassment and disability discrimination are two of the primary types of claims that end up in court these days," he says. Although writing and adopting an anti-harassment policy would seem prudent, he says, many small employers, including grass-roots charities, "just haven't gotten around to it because they don't have an HR department. They have other pressing issues."
A charitable mission does not make a nonprofit organization less susceptible to sexual-harassment incidents, says Mr. Reibstein. "Generally, people think of nonprofits as more in touch with community and social issues," he says. But "it's very difficult to take sex out of the workplace."
Legal experts and nonprofit managers say that to curb inappropriate behavior and to successfully defend themselves against lawsuits, charities should maintain an effective, fairly enforced sexual-harassment policy. Here are some tips:
Define sexual harassment. Prohibited behavior should include not only the most blatant forms of sexual harassment but less egregious actions as well, including spoken statements, sexual touching, and pornography in the workplace, says Debra Smith, a lawyer at Equal Rights Advocates, a women's equality organization that has represented people suing their employers for sexual harassment. "You just can't say 'sexual harassment,' because people don't know what that is, so it's not an effective policy," she says.
Han Nachtrieb, vice president for human resources at the Fred Hutchinson Cancer Research Center, in Seattle, recalls what happened when an employee of the center was "staring at women inappropriately and making some suggestive sexual remarks."
"This was pretty low level. It was not quid pro quo, 'Sleep with me or I'll fire you,'" Mr. Nachtrieb says. But it was "irritating behavior in the workplace," he says, so the nonprofit group's managers talked to the employee, pointing out guidelines in the center's employee manual, which outlines inappropriate behavior. The harassment stopped, says Mr. Nachtrieb. "You've got to be pretty specific about what you expect of people, and then they can adhere to it," he says.
The definition of sexual harassment should include not only what is illegal but also what is merely inappropriate, Mr. Reibstein says. "Many cases are in the gray area," he says, citing as an example a second request from a supervisor to a subordinate for a date after being turned down the first time. "You really don't want to give authority to co-workers and supervisors to go up to the line but not cross it," he says. "Even getting close to the line is not good."
The "line," he says, could include displaying photos of partially nude people or looking at co-workers up and down. "You don't need to actually reach a conclusion that anything is illegal in order to take effective action," he says. "All you need to say is, 'That's not appropriate, and we believe it violates our policy.'"
Regulations should be tailored to the specific culture of the charity for which they are written, says Ms. Stotland. For examples, she says, when she worked at Project Sister, "we had people who are drawn to a rape crisis center who've had some pretty horrific experiences in their life. We simply made it a rule that you don't touch somebody without asking first. Even to hug them."
Prevent potential misuse of the policy. Although it is important to define what harassment is, it is also important to spell out what it is not, says Mr. Reibstein. A sexual-harassment policy should point out that disagreements between employees and their supervisors about work do not qualify as sexual harassment if no discrimination is involved, he says.
"Lots of people feel that they're harassed when they're told to do their job in a way they don't agree with," Mr. Reibstein says. When he writes policies for his clients, he says, "I specifically include a provision that says something to the effect of, 'It is not considered harassment for a supervisor or manager to require employees to meet performance or conduct standards.'"
Make it easy to report incidents. The sexual-harassment policy "needs to be posted where everyone can see it," says Ms. Smith. It must include not only the primary contact person for reporting harassment, but an alternate as well. "Sometimes that person whose number is listed is the harasser," she says.
For employees to feel comfortable reporting harassment, they must be allowed to do so in spoken conversation, says Melanie L. Herman, executive director of the Nonprofit Risk Management Center. "Some employees would be very reluctant to type up a memo," she says. And, she adds, nonprofit employers should accept complaints by phone from staff members who work away from a charity's headquarters: "It's common for nonprofits to send people out into the field where people live and need services, and so allowing them to report something by phone" is necessary.
Prohibitions against retaliation are also important. "A large number of the cases that come to court are by virtue of plaintiffs who claim, 'I brought this claim against my supervisor, and I was immediately terminated or harassed or retaliated against,'" Mr. Reibstein says. "Unfortunately, retaliation is a common human reaction, and you need a strong policy prohibiting retaliation in order to ensure that those who bring claims are comfortable that the complaint procedure is effective."
But while an employer must create an environment in which staff members feel at ease reporting sexual harassment, absolute confidentiality should never be promised, some observers say -- although it often is. "The law does not allow one to keep things confidential if you're going to do what the law requires: to investigate and take prompt corrective action," says Mr. Reibstein.
Instead, Ms. Stotland says, an employee who reports sexual harassment should be told that managers will do their best to protect him or her, while making no promises of confidentiality.
Enforce rules fairly. Nonprofit organizations must be careful to apply rules regarding sexual harassment to everyone who either works at the organization or comes in contact with employees. A harasser, Ms. Herman notes, "could be a volunteer, it could be a donor, it could be someone walking in off the street to buy a raffle ticket."
At her organization, she says, "we have a statement in our policy that says staff who are bothered by the behavior of any individual they encounter at the office, at our functions, or while traveling on behalf of the organization have a responsibility to report the matter."
Ms. Stotland reminds charity managers to remember to include trustees when enforcing a harassment policy. "Every staff member in every nonprofit I ever worked at was taught, 'You give very good treatment to your board members -- they own the shop,'" she says. But no special treatment should extend to a board member accused of harassment, she says. Board members and other volunteers, she notes, "aren't necessarily people who are in the work force at the time, and they may not have the consciousness of what's now acceptable conduct."
While volunteers must be subject to rules against sexual harassment, says Ms. Herman, a charity's policy should also extend protections to them. Although she notes that most courts have ruled that volunteers have no legal right to sue organizations over harassment issues, if a volunteer receives a stipend or is hired later, a court might decide differently if a dispute ever makes it to a judge or jury.
Train staff members to heed and enforce the policy. If an organization is sued for harassment, says Ms. Smith, an employer's best defense is to show what it did to prevent problems. "If they can show they had a policy, that it was an effective policy because they trained new employees, they trained their managers, they do good-faith investigation, then an employer is going to be more protected," she says.
Besides reviewing the sexual-harassment policy and discussing what type of behavior is impermissible, Ms. Stotland says it is important during sexual-harassment training to set an example of how to handle harassment complaints by treating all comments with respect. "Unless they are saying something offensive, if they are just saying something that maybe is boring other people, or is taking you off the path of conversation, you don't want to cut somebody off if they are doing that in this context," Ms. Stotland says. "You want to show them that they can be heard, and they can be validated."
Does your organization have a sexual-harassment policy? Is it effective, in your view? Discuss how nonprofit organizations can prevent or deal with harassment incidents in the Tools and Training online forum.