Could your event Code of Conduct be exposing you to legal risk?

These days it’s pretty much de rigueur for events to have a Code of Conduct (CoC).

Several high-profile stories of sickening harassment, sexual and otherwise, at major conferences have made the headlines in recent years. Depressingly, they are the tip of a much larger iceberg. So organisers around the world have hit back, often by creating written commitments setting out behaviours that will not be acceptable at their events.

Putting such measures in place to root out harassment and advise attendees on what to do if they ever feel threatened or unsafe is, of course, something every event planner should do.

Event organisers put CoC in place for the most noble of reasons. They want everybody at their events to be safe and to feel equally welcome and relaxed.

But some legal experts urge caution in how CoC statements are drafted and (especially) the mechanisms your event team have in place to enforce them on-site, should the worst happen.

A typical CoC might state that no harassment (whether verbal or physical) and / or discrimination will be tolerated; that every participant will be provided with a harassment-free experience, regardless of gender, gender identity and expression, age, sexual orientation, disability, neurotype, physical appearance, body size, race, or religion.

Everyone wants safety and kindness at their events. And organisers typically assume that, by having a written CoC in place and linking it to the Terms and Conditions of the event, they are somehow protecting their organisation from negative consequences in the event of harassment complaints at their events. Actually, the opposite might be true.

‘I want to say, not so fast!’ says Paula Cozzi Goedert, a partner in the Chicago office of Barnes & Thornburg LLP. Goedert, who chairs the PCMA’s Associations and Foundations Practice Group, explains:

‘It’s not so simple. The big question is, if someone engages in that conduct – or someone alleges that someone engages in that conduct – what are you going to do about it?’

What’s actually in your power?

Organisations have several ways to deal with attendees accused of harassment. ‘You have the power to eject people from your meetings. You have the power to ban them from future meetings. And you may have the power to remove them from membership. That gives you a lot of leverage over the accused’, said Goedert.

But it’s vital to be aware of your responsibilities in wielding that power. In the US judges have what’s called ‘judicial immunity’, meaning that, unless they do something egregiously wrong such as taking a bribe, they can’t be punished for getting a judgement wrong. Your organisation and your board of trustees, however, can be.

‘If a meeting organiser ejects or bans someone and it subsequently turns out that the accused was innocent, that person can potentially sue the organiser for defamation for having ruined their reputation among your small community of widget manufacturers’, said Goedert. ‘You could be liable for significant damages, especially since the Federal Trade Commission considers the ability to attend a business conference and membership in a business or professional association to be a valuable business right’.

But harassment is harassment, right?

Maybe. Maybe not. Goedert outlined three examples from her clients’ experiences that show just how murky determining what really happened can be.

Example 1:

A female attendee accuses a male attendee of holding her too closely while dancing, saying it amounted to sexual harassment. She had a witness who backed her up. The investigator, however, thought it was strange that both the complainant and the witness used the exact same words to describe the incident, for which the accuser wanted the accused banned from future attendance and expelled from membership of the association.

When the investigator called the accused to get his side of the story, he said he’d be glad to talk – with his lawyer present. When he called back with his lawyer on the call, he stated that the female attendee was actually the aggressor, and when he finally said he’d dance with her, she made him uncomfortable and he left.

‘Whose side do you believe?’ asked Goedert. ‘Even with the witness, it’s almost impossible for the association to know who’s right.’ Because the alleged offense was fairly slight, they just told the alleged harasser to stay away from the accuser, something he was more than happy to do. ‘We told the complainant that he denies the accusation, but he agrees to stay away from you, and that was the end of it.’

Example 2:

A female attendee goes to a bar after conference hours with a male attendee who said he wanted to talk with her about a potential job. After drinking at the bar from 10pm to 2am, he walks her back to her hotel and suggests a possible next activity up in her room, which she declines. He leaves. She asks the association to do something about it, citing the anti-harassment policy.

Goedert said that when the association asked for his side of the story, the accused said they had a date, and that he had hoped for more, but she said no, and he left. End of story. Ultimately, what could or should the association do, asked Goedert, when the incident didn’t occur at the meeting; there were no witnesses; and the accused denies the allegation?

Example 3:

A conference attendee reports hearing another attendee tell a woman, ‘You have nice legs.’ The attendee believes it’s harassment and that the accused should be banned from the association’s future conferences.

When the alleged harassee was contacted, said Goedert, she had no idea what they were talking about. ‘People mishear and misunderstand,’ Goedert added.

It can be tempting to move immediately to expel the subject of a complaint right way. And sometimes the evidence to do so might be irrefutable. But get it wrong, and the consequences can be dire. So …

Protect yourself with due process

According to Goedert, ‘you don’t have the right to throw people out of your meeting or membership, or prohibit them from coming back, unless you give the accused due process’.

Due process includes a right to a hearing. ‘It doesn’t have to be a trial, but they have a right to be heard, a right to counsel, and a right to an appeal. It can’t just be one person saying, ‘You’re out’. 

This, she said, is why she advises her clients not to institute codes of conduct for meetings. ‘Because people will come to you expecting that you will do something about it, and that’s going to put you in the middle of a mess.’

If you do have a Code of Conduct …

Don’t overpromise

Say, ‘The widget manufacturers’ association expects professional conduct at all times while at sponsored events’. You’re setting expectations, but not rules your organisation will be obliged to enforce. And those expectations are that attendees will behave professionally.

Don’t take responsibility beyond your purview

By saying ‘at sponsored events,’ you’re making it explicit that what happens at 2am after bar-hopping, for example, is outside the realm of your responsibility. Advise people to call building security or police if they feel threatened, not your conference staff. ‘It takes you out of the middle of saying that we’re going to protect our attendees from all the vicissitudes of life.’

Build in a right-to-reply

For clients who insist on having an enforceable Code of Conduct, Goedert suggests including the accused’s right to be heard, represented by legal counsel, and to appeal. She draws up a complaint form that says, ‘in big bold letters’, that a copy of the complaint will be given to the accused. That tends to stop those with false accusations in their tracks, she said. ‘The people who are serious about the complaints will follow through.’

Don’t use vague and unenforceable language

Goedert shared two examples from an actual CoC she had reviewed:

‘Verbal or written comments that reinforce social structures of domination are prohibited.’

‘Interfering with another’s autonomy by attempting to make decisions for or control another’s independent action is prohibited.’

Good luck adjudicating on either of those.

One for the road

Another piece of good advice: Since the sorts of problems that a CoC seeks to remedy tend to intensify where alcohol is being served, Goedert advises event hosts never to serve without licensed bartenders.

Get professional help

In the end, organisations tend to get themselves a CoC for the best of reasons. They want to take a stand against unacceptable behaviour and to protect their attendees.

But, if you do have a written CoC for your events, it’s also good idea to consult your organisation’s legal advisors about what you’re committing to, and how you’ll execute on it.

Generally speaking, your organisation will have certain legal responsibility to employees who are targets of harassment, and certain liability for any employees who perpetrate it. All other things being equal, your organisation is probably not, generally speaking, responsible for the misconduct of nonemployees toward other nonemployees, even if the incident occurs at an event your organisation has organised.

However, if your staff members are aware of, should be aware of, or helped to create the circumstances in which the misconduct arose, then your organisation just might be held liable.

In this respect, creating the wrong sort of CoC, over-promising, neglecting due process and making commitments to eliminate behaviours or bad outcomes that are actually outside your control, could place your organisation in legal jeopardy.