There has been a lot of discussion of the need for anti-harassment policies at freethought/skeptical conferences/events, but it seems to me that nobody (including myself hitherto) has thought to consult with an actual legal professional about the situation. So I decided to do so. I found a lawyer who was willing to talk to me about it (it was amazing how little time that took once I figured out how to use the Google) and we had a brief conversation (actually an chat over our smartphones). Here is how it went:
SA: Let’s say I come to you as a client, on behalf of a group organizing a freethought or skeptical conference or event, and I want to ask you about setting up an anti-harassment policy.
Lawyer: Okay. I have some questions. First, what does that mean, freethought/skeptical?
SA: Like, Atheist and don’t believe in the paranormal.
Lawyer: Okay. What kind of group. A regular business entity? A not-for-profit corporation? An unincorporated group? Or just one lady calling herself a group?
SA: Does that really matter?
Lawyer: Most definitely.
SA: Call it a not-for-profit corporation.
Lawyer: And I assume that this corporation has actual employees. Not just a bunch of volunteers?
SA: Does that really matter?
Lawyer: I wouldn’t ask if it didn’t matter.
SA: Both employees and volunteers.
Lawyer: Does the employee handbook currently have an EEO anti-harassment policy? Or do you have one outside of an employee handbook that all employees receive and sign a receipt for at the start of their employment?
SA: I don’t know.
Lawyer: Then I am glad you came to me. All employers need a well-drafted anti-harassment policy. This helps protect them from liability in the event that an employee sues for discrimination based on status in a protected class, or a hostile work environment. I have several sample policies I can give you. Any of them should work.
SA: It’s not that kind of policy I am talking about. I am talking about a policy for conferences.
Lawyer: Unless it is really badly drafted, it should apply at conferences too. Why would you want a separate one?
SA: I don’t think you understand. I want a policy that will apply to people attending the conference, so that they don’t harass other people attending the conference.
SA: To protect the people attending the conference.
Lawyer: From whom? Your employees?
SA: No, from other people at the conference.
Lawyer: Okay. I guess I could draft something, if you really wanted me to, but it seems like a really bad idea from my perspective.
Lawyer: There are a couple of legal issues at play. One of them is detrimental reliance, the other is assumption of a duty of care. They are both kind of related. Let’s say you put out a policy saying that you will protect people from harassment, and someone goes to the conference after reading that policy, and they are harassed. They might have a cause to sue you, because you assumed a duty to protect them and because they will claim that they would not have even attended the conference without your policy of protection from harassment. Ordinarily a place like a conference is not going to be liable for the actions of third-party attendees. You just could not get sued for what an attendee, or customer, does. You can always get sued for what your employees do, so again an internal policy applying to them is a good idea, but not to third parties. Let me give you an example. You go to McDonalds. Some other customer harasses you. You generally can’t sue McDonalds for that. But if McDonalds had some kind of policy that prevented customer on customer harassment, and that they would actually enforce that policy, well maybe that harassed customer will be able to sue McDonalds for failure to comply with the duty of care that they assumed when they put out that policy. Bad idea. I would say don’t do it.
SA: Lets just assume that we have to do this because a bunch of advocates strongly encourage it.
Lawyer: Is there going to be some type of program distributed at the event? A booklet of some sort?
SA: Assume yes.
Lawyer: Then we draft something and put it in there and distribute it a registration. That way we can be sure everyone gets a copy.
SA: What about posting it on the website in advance?
Lawyer: I would advise against it, probably, depending on why you want to do it. So, why?
SA: Because people are demanding it so that they can feel safe going. At least that’s what they say.
Lawyer: Have these people expressed any antagonism towards your organization or your event? Are they your enemies?
SA: Some of them, maybe.
Lawyer: I ask because it almost sounds like they are trying to set you up to be sued. You see, unless you inform people in advance about a conference policy, it will be almost impossible for them to claim that they relied upon the “safety” that the policy supposedly provides in making their decision to attend. Thus, if you absolutely insist on having a policy, the last thing you want to do is announce it in advance.
SA: Let’s say I want to have a policy, what should it say?
Lawyer: That depends on what you want to accomplish. So, what do you want to accomplish?
SA: Why do I get the impression that is a Socratic question?
Lawyer: Probably because it was. In my view, the only reason for such a policy would be to protect my client (in this case your hypothetical organizers) from liability. You seem to want a policy that will have the dubious value of “making people feel safe.”. So, I would suggest a policy that accomplishes goal one while sounding good for goal two. First, the policy should be part of a “code of conduct” that gives the organizers the right to throw people out. Second the policy should not assume a duty of care. Third the policy should be clear what it’s area of coverage is. Lastly, the policy should allow people to be ejected without a refund.
SA: What would it look like?
Lawyer: You realize that I am typing this chat on my phone? You want me to draft a sample policy off the top my head, on my phone?
SA: If you don’t mind.
Lawyer: With the caveat that this is for educational purposes only, and that anyone thinking about instituting a policy should seek independent legal counsel, I would suggest something lke this: (I have put it in a quote box)
Code Of Conduct: All attendees are expected to comply with all federal, state, and local laws while at the event. This includes laws relating to assault, harassment, and disorderly conduct. Attendees are expected to treat each other with respect and decorum. Attendees may not subject other attendees to unwanted and repeated communications of a sexual nature. This policy applies to the actual event, and not to areas of the venue not under the control of the organizers. If any attendee violates this policy, they may be ejected by the organizers without a refund. The organizers reserve the right to otherwise eject any attendee from the event for any other reason, or no reason, with a refund calculated in a pro rata basis. The organizers do not hereby assume the duty to control or mitigate the behavior of conference attendees toward other attendees, except to the minimum extent required by state and local law, if such a minimum requirement exists. No cause of action may be based upon any duty an attendee believes may be established herein by the organizers.
At least that’s the best I can do on my lunch break. Anything better will cost you $300 per hour.
SA: Plus expenses?
Lawyer: For you, SA, expenses are gratis. Gotta go. Ciao.
(Back to me, SA, again). So there you have it. Actual comments from an actual lawyer, with only a couple of minor edits on my part.
Edit. Apparently the head of CFI is a lawyer and wrote a very long blog post last Friday about his own policy. Note: he’s the same guy who thinks that the use of the word “balls” in the secular/Freethought community is a problem that needs solving (see my previous post)