Jul 03 2012
23 Comments
By Skeptical Abyss Uncategorized

A lawyer’s perspective on conference anti-harassment policies

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.

Lawyer: Why?

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.

SA: Why?

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)

  • bluharmony

    As an attorney, that is what I would recommend to a client as well.

  • superdave

    Interesting take.

  • http://coffeelovingskeptic.com Tony Ryan – Coffee Loving Skeptic

    Very interesting. As someone who works in law, has a degree in criminal justice, and used to teach criminal law, it sounds about right (the advice, and the legal rep’s apprehensions)

  • Amber S K

    Ugh. I get it, but this is the reason it’s no fun to work, eat or live anymore in the US. As far as I can see, nobody has been asking for anti-harassment policies so that they can sue anybody, but only for the purpose of knowing that harassment will be dealt with by the conference organizers. In *his/her* view the only reason for a policy would be to protect the organizers from liability. As an attorney, that is his or her job, but it’s depressing that it would be reduced to this. I don’t feel that making people feel safe to go to conferences is of dubious value, but I guess if you can’t sue anyone for not feeling safe, an attorney would.

    I’m not bashing attorneys (“Some of my best friends are attorneys”, she said defensively) but I don’t think this speaks to the spirit of the issue. It’s kind of like the police saying they can’t do anything if you’re being stalked until the person commits a crime. OK, that makes sense from a legal perspective but it’s not reassuring to the “stalkee.” Are you going to leave your house knowing that?

    Before anyone goes there, I’m not comparing stalking with sexual harassment at conferences (unless it actually is stalking).

    • Skeptical Abyss

      Amber, I think that the lawyer’s point would be that if a fellow attendee injured someone, either mentally or physically, the policy would allow someone to sue the organization for the injury when otherwise they would not be able to.

      • Amber S K

        Oh, I understand the lawyer’s point and I’m not saying it isn’t valid. What I am saying is it’s become a real bummer to want to organize/implement things that are good for the community but can’t because somebody pops up with “We can’t, due to liability concerns.”

        • John

          The question then becomes – is this actually good for the community? I honestly don’t think there’s any solid evidence that JREF doesn’t take claims of harassment seriously – and I don’t think there’s any need to put the organization at risk for things that they honestly are powerless against to begin with.

          I mean, no one looks at words on a piece of paper, thinks “Well, I was going to harass some chicks, but I guess not anymore.” It’s silly. They should deal with problems as they arise, but they shouldn’t be held indefinitely accountable for everything that might possibly happen at the event.

  • Simon

    it seems to me that nobody (including myself hitherto) has thought to consult with an actual legal professional about the situation.

    You are aware that CFI CEO Ronald Lindsay is a lawyer correct? The same is true for CFI’s legal counsel. Amanda Knief at American Atheists is also a lawyer. Both are large national secular organizations and both have legal professionals as part of their leadership and yet they recently drafted anti-harassment policies for their respective conferences. So I think it’s safe to say there was some consultation with actual legal professionals.

    • Skeptical Abyss

      Have they actually opined on the legal issues? Linkie?

      • Simon

        As mentioned in my comment-Ronald Lindsay is a lawyer and CEO of CFI. Here’s his blog post where he discusses the rationale as well as lays out the complete policy: http://www.centerforinquiry.net/blogs/entry/cfis_new_policy_on_hostile_conduct_harassment_at_conferences/

        If you have any questions on CFI’s rationale, presumably that would be a good starting point.

        Your perception “that nobody (including myself hitherto) has thought to consult with an actual legal professional about the situation” would be contradicted by the simple fact that two very large groups employ lawyers that were involved in drafting said policies. This is just a statement of fact.

        • Skeptical Abyss

          After reading his (ponderous) post, I stand corrected on that one point.

          Then again, the fact that he got accolades from bloggers on FtB for his first comments gives me an extreme sense of skepticism, as does his verbosity, and frankly, pomposity.

          And hey, if he wants to take the liability risk for his group, great. If in fact he actually made such an assessment. Same with AA, I guess.

          I have put a link to Ron’s blog post at the end of my post.

          • Amber S K

            A skeptic is verbose and that’s an issue? It’s a reasonable post, IMO and as careful as it probably needs to be, regardless of who liked it. I don’t think anyone can claim to misunderstand it anyway.

          • Don O. Treply

            Say what you will about Ron Lindsay’s prose, but even you must concede that shouldering such liability demonstrates that the man has balls.

          • Skeptical Abyss

            ROFLMAO!

  • http://AgnostiChicagOkie.blogspot.com D4M10N

    This may be the most compelling argument against anti-harassment policies to date, but the organizers of major events probably have three things that are not much considered herein:

    1) An unrealized desire to assume the duty to mitigate the behavior of conference attendees toward others, so as to prevent all forms of physical and mental harm.

    2) An unstated goal to remunerate victims of such harm.

    3) Liability insurance.

    • Skeptical Abyss

      1) An unrealized desire to assume the duty to mitigate the behavior of conference attendees toward others, so as to prevent all forms of physical and mental harm.

      “All forms of physical and mental harm.” Of course, this is impossible, so I can’t believe that any organizers, except for wild-eyed utopiaists, have this goal.

      2) An unstated goal to remunerate victims of such harm.

      Highly doubtful. It goes against the organizational imperative–protect the organization’s money and budget.

      3) Liability insurance.

      Insurance companies give you a bit incentive not to be sued–raising your rates if you do, or even canceling future coverage if you recklessly increase their liability risk. Most leaders of groups sophisticated enough to have insurance realize this.

      • EveryMan

        But they are clearly asking for the impossible.

        They want to “feel” safe; which is a subjective emotional state that only they have any control over.

        It gets worse when you look at something like the “upskirt photo” B.S., which was entirely a production of their own paranoia.

        • bluharmony

          Exactly.

          • http://www.facebook.com/wonderist Thaumas Themelios

            Exactly x 2.

  • bluharmony

    Also, I’m relying on the CFI’s attorney to say that no legal precedent for such a policy exists. I haven’t actually bothered to run a Westlaw search myself, I’m assuming that if he had a case outside the employment law context, he would provide one, since he did provide a citation for an employment law case, and the went on to argue that this situation is analogous. It’s not.

  • Marlo Rocci

    This is by far THE BEST article on the question. It gets to the point and has legal authority. I’ve been thinking the whole time that if you’re harassed at a bar or the hotel, then it’s the bar or hotel that would be the responsible party. They would also be in possession of the video servielance records neccessary to prosecute physical harassment.

  • http://onefuriousllama.com One Furious Llama

    What a lovely post. I’m with Marlo, best post on the sad sorry subject I’ve read.

    Well done.

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