Much of my time is spent advising non-profits on human resources issues, and the employment issues they face are typically no different than those faced by for-profit employers. Non-profits are legally obligated to put in place a policy that prohibits unlawful harassment in the workplace, to promptly investigate workplace harassment claims, and to take prompt and effective remedial measures to remedy the alleged harassment. This is true – in the non-profit workplace – regardless of whether the alleged harasser is a supervisor, coworker, vendor, board member, or even the board chair. But what about sexual harassment complaints by members against other members? Is the nonprofit legally required to do anything? The answer under federal employment laws is “no” – those laws only apply to harassment in the workplace (at least so far). But what about other theories of liability? Might a member claim that he or she was harassed by an employee or another member, and that the non-profit is liable? Perhaps – especially in light of the “Me Too Movement.” Thus, when a harassment complaint is received by a non-profit (even from a non-employee), it is important to seek counsel as this is an area of the law that might rapidly change. The bottom line is this: These types of situations are always judged with the benefit of hindsight. And a response that may have been “good enough” a year ago may not be “good enough” when judged with the benefit of the “Me Too” hindsight lens.
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