Nonprofits Insurance Alliance

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When #MeToo Comes to the Nonprofit Workplace

It’s hard to ignore the plethora of revelations of sexual harassment incidents involving well-known public figures being revealed in the news recently.

It’s also difficult to ignore the grassroots social movement that resulted – the #MeToo campaign, originally started by consultant, blogger and advocate Tarana Burke over 10 years ago, and recently popularized with a tweet by actress Alyssa Milano that garnered more than 35,000 direct responses on its first day. From there, the hashtag quickly spread across multiple social media platforms and grew immensely in participation, with individuals all over the world chiming in to share their stories of harassment and assault, or simply posting #MeToo. To say the trend is viral is an understatement – people are speaking up, and they’re doing so publicly.

What you may not know is that the number of harassment complaints nonprofits have been receiving has increased as well. These complaints run the gamut from anonymous emails reporting decades old alleged transgressions to the reporting of current serious ongoing harassment of current employees by their supervisors. Sexual harassment is a serious issue and it is incumbent upon every nonprofit to do what it can to minimize the risk of these types of incidents from occurring.

At the Nonprofit Insurance Alliance Group, we have many free tools to assist our members in addressing these risks. The following resources are available to our nonprofit members when faced either with a current complaint of sexual harassment in the workplace, or to educate your workforce in mitigating the potential risk of sexual harassment becoming an issue.

  • Free recorded webinar on Preventing Sexual Harassment and Abuse Conduct in the Workplace, which can be accessed
  • Free recorded webinar on Conducting Internal Investigations, which can be accessed
  • Members with a current Directors and Officers policy (which includes Employment Practices Liability) can take advantage of free unlimited Employment Consultations. Labor & Employment Risk Managers (LERMS) can assist members in understanding best practices for establishing a harassment free workplace, including sample policies and recommended training; the processing of a complaint of harassment, including internal or external investigation and assessing risk; and possible steps to remedy the situation. Information on how to request a consultation can be found here.
  • Free Sexual Harassment Prevention Training for Supervisors, available for nonprofit members in Connecticut and California where such training is legally mandated. Additional information can be found here.
  • Training brochures for nonprofit staff working with youth, entitled “Supervision of Children and Teens Never Includes Sex,” which is available

In addition to these resources, you should confirm with your nonprofit’s insurance broker that you have sufficient Employment Practices Liability (EPLI) insurance coverage under a Directors & Officers (D&O) insurance policy, and/or Improper Sexual Conduct (ISC) coverage, if you are exposed to risk in this area.

Making these tools available should help create a healthy and respective environment at your nonprofit, minimize the likelihood of a #MeToo incident from occurring, and assist you in responding if such an incident does occur.

From the Claims Files: Woeful Website Wording

The chances are that your nonprofit has a website. In the digital era, creating and maintaining a website is almost unavoidable. It explains your nonprofit’s mission and programs to current and potential supporters, solicits donations, and provides additional information on events and fundraisers. The fact of the matter is, your website is the face of the organization.

Given the importance of your nonprofit’s website, it shouldn’t be a surprise that choosing your wording with care and caution is a must – so that visitors are not only engaged and interested in your nonprofit, but also leave with a clear and accurate understanding of what your organization does. Without clear language, individuals in the general public may misconstrue what it is your organization does, and as a result, could end up suing for damages. Unfortunately, that’s exactly what happened to one of our nonprofit members.

The Claim

The nonprofit runs a halfway house for men with dual substance abuse and psychiatric issues. Their clients come into the program after being discharged from hospitals, to make sure they’re stable and can establish both a job and a place to live. One such client, who we’ll call John, entered the program to manage and treat both schizoaffective disorder and an addiction to methamphetamines. During the intake process, John told the organization that he was single and had no spouse – this turned out to be a lie and while John was in treatment, his wife filed for divorce. Despite this, John’s condition was stabilized, he found a job and an apartment, was discharged from the program, and by all accounts was doing well.

After seeing how well things were going for John after he was discharged from the program, his wife tried to re-enter the picture and showed up to his new apartment to reconcile. As the couple was about to become intimate, John’s wife discovered that he had a visible STD. It was subsequently discovered that John had been having an affair with a staff member at the nonprofit, and they were now in love.

The staff member was let go as a result, but John’s wife sued the nonprofit for emotional damages caused by the relationship. Initially, it was deemed that she had no standing in court as she was not a client of the nonprofit, so the judge dismissed the claim. However, she then amended her complaint based on the fact that the nonprofit’s mission, as listed on their website, was to help addicts and their families. The inclusion of families in the nonprofit’s mission meant that the wife could be included under the umbrella of who is being served by the organization.

In the end, it was ruled that the website’s text did not mean that John’s wife was owed anything by the nonprofit, and the suit was ultimately dismissed. However, this claim had the potential to cause of lot of problems for the nonprofit, had the court agreed with the wife that the word “families” meant she was a client of the nonprofit organization.

Lessons Learned

Although this claim did not result in liability for the organization, it highlighted the potential that words used in nonprofit marketing materials, such as websites, have the potential to create legal liability. Words describing services can be alleged to be an implied-in-fact contract or create a legal relationship which can create a legally-enforceable duty to act in a certain manner. So what’s the takeaway from this nonprofit’s story? Your organization’s wording, on its website and elsewhere, is critical. For that reason, carefully examining what you’re communicating and how, is essential – not only to ensure it’s accurate and engaging, but also to ensure that you’re not opening your organization up to unanticipated liability. Legal review of such materials or disclaimers may be appropriate risk mitigation tools for those nonprofits in highly regulated industries, such as health care.

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