There is, for good reason, a great deal of attention given to the role of strong policies and investigations in the employment context. But what if you are or your client is an association concerned about the conduct of a member? Just like in the employer/employee context, the best way to get reliable and actionable information is a thorough investigation. But unlike in the more traditional employment context, many people wonder if they have the power to act when it comes to conduct of members rather than employees. The answer, of course, depends on the circumstances, but membership associations often do have that power.
While it might go without saying, we should first point out that if the membership association’s own employees are experiencing harassment in the workplace, it needs to be addressed like any other employment situation. Outside that context, however, the association may have a responsibility to act as well, with the issue likely turning on whether the association can be deemed to have been negligent. Some potentially relevant factors would be whether the association had notice of the conduct, whether the conduct was occurring in a setting or through means controlled by the association, and whether the association took adequate steps to respond. In short, just like in other settings, membership associations bear the responsibility that comes along with having power, e.g., conduct at its venues or events about which it knew or had reason to know.
The question becomes knottier when faced with inter-member conduct outside such settings. When addressing these concerns, an organization must navigate complicated legal issues, including potential antitrust concerns depending on the nature of the association. These complications, however, should not prevent an organization from getting the legal advice it needs and, with such counsel, doing all within its power to address harassment and misconduct in its ranks.
In any event, it’s important that membership associations map out expectations for members in a code of conduct. The code should be clear about what conduct, both during and outside association sponsored and controlled activities, are deemed a violation. Ideally, it should detail a complaint, investigation, and discipline process. At any event over which the association has control, these expectations and procedures should be reasserted and incorporated by reference in enrollment and other materials provided to attendees. For those interested in seeing examples of membership association codes of conduct and complaint procedures, please let us know, as we’ve compiled many.
Those expectations should be broad and flexible while also using examples that provide some notice and parameters. That can be a difficult balance to strike, but it is one that should be familiar to many of you who have employee conduct policies that provide broad categories and specific, non-exhaustive examples.
The Professional Convention Management Association published an article in 2013 entitled “Why Your Meeting Needs a Harassment Policy.” The author highlighted a clear and non-legalistic example of how Westercon, a Science Fantasy Conference, struck that balance in one of its policy provisions, which includes general statements regarding consent along with clear, succinct examples: “A neat tattoo or a sexy, excellent costume does not come with permission to touch, nor is it an invitation to do so. Always ask first (and wait to receive permission) if you wish to touch clothing, property, or the person. Costuming is not consent. ‘No’ means no. ‘Stop’ means stop. ‘Go away’ means go away.”
It’s best not to wait until you are confronted with a complaint to start thinking about implementing such policies and procedures. As Michele Berger, a nonprofit and exempt organizations attorney, wrote in the ABA’s Bar Leader, organizations that:
think through these types of scenarios in advance and develop appropriate written policies and guidelines, with specific examples, will better equip their associations to address such issues should they arise. A staff member asked to enforce a policy against a non-employee stakeholder will have a much easier time if such policy is written and clear and the staff member knows he or she will have the full support of the association leaders.
By implementing and enforcing such expectations for employees, event participants, and members more generally, membership associations can go a long way toward ensuring safe, harassment-free environments and protecting themselves against claims that they permitted harassment to occur.
 We should be clear that, of course, the circumstances of any situations will dictate and may impact the nature and scope of a membership association’s power. We do not offer legal advice in this article, only a general discussion of the way in which, under many circumstances, membership associations can be proactive in addressing harassment.