Many organizations rely on the work of volunteers to make meaningful impacts in their communities. But what if a volunteer engages in discriminatory behavior? Even though a volunteer may not be considered an employee, the organization still can be exposed to liability under both New York and federal law.
Whether you’re an executive director of a nonprofit or a volunteer manager of a volunteer organization – or if you serve on a nonprofit board in New York – understanding this potential liability is crucial for staying out of hot water.
New York State Human Rights Law
Under the New York State Human Rights Law (NYSHRL), it’s unlawful to discriminate against a person in the workplace on account of a protected characteristic. These protected characteristics include (but are not limited to) race, creed, color, national origin, citizenship status, sex, disability, or marital status. The NYSHRL and the New York courts have further specified that any person who commits the discrimination, whether they be the owner, lessee, manager, agent, or employee, will be in violation of the law.
Acts of discrimination covered under the NYSHRL are broad and can entail adverse employment actions, denying accommodations or privileges associated with the public space, retaliation, using racial epithets, and sexual harassment.
Despite volunteers being unpaid workers, they still can be classified “agents” of an employer. Because a volunteer can be considered an agent, they are subject to the NYSHRL prohibition on discrimination and sexual harassment.
Also, the NYSHRL separately identifies the executive director or manager and the employee/agent as people who sometimes can be independently liable – in addition to the employer entity – under the law.
For any NY-based entity that uses volunteers, it should remain acutely aware that those volunteers can create risk. That means the same kind – and sometimes even more – training that’s done for employees ought to be done for volunteers.
Moreover, it’s critically important to ensure volunteers know they’re subject to all anti-discrimination and anti-sexual harassment policies. Although New York’s annual sexual harassment prevention training requirement applies to employees, organizations that rely on volunteers should strongly consider giving volunteers similar training, especially when they interact with employees, clients, program participants, donors, or the public. Ensuring volunteers on trained on these expectations is a best practice.
Then, if a report or complaint is made about the behavior of a volunteer, the organization should be promptly and thoroughly investigate the incident and take appropriate action. This additional best practice will help the organization more effectively defend itself if the alleged victim brings a claim.
Federal Law: Title VII of the Civil Rights Act
Similar to the NYSHRL, Title VII of the Civil Rights Act prohibits workplace discrimination based on race, religion, national origin, color, and sex (including gender, gender identity, pregnancy, and sexual orientation). If an employee believes they’ve been subject to discrimination or other unlawful acts, including by a volunteer, there are several potential legal claims available to the employee, including:
- Disparate treatment: treating an employee or applicant different from others based on a protected characteristic;
- Quid pro quo sexual harassment: conditioning aspects of employment on sexual favors;
- Retaliation: taking an adverse action against an employee who asserts their rights; and
- Hostile Work Environment (sexual harassment or discrimination): allowing severe or pervasive conduct to create a work environment that a reasonable person would consider intimidating, hostile, or abusive
Volunteers Behaving Badly
While it’s not common, when it happens, we most often see volunteers behaving badly by creating a hostile work environment for the employees with whom they interact. As a result, just like with State law claims, it’s important for organizations that use volunteers to ensure they’re adequately trained and have been given and understand workplace-related policies that are designed to ensure respect. Volunteers also should be effectively managed in their day-to-day interactions.
In a case of sexual harassment by non-supervisory employees or non-employees over whom an organization has control (e.g., independent contractors, volunteers, or customers on the premises), employers generally are liable if they knew or should have known about the harassment and failed to take prompt and appropriate corrective action.
The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for investigating allegations of sexual harassment and discrimination. When doing so, the EEOC looks to the entire record – that means all of the facts – including the nature of the conduct and the context in which the alleged incidents occurred.
The Severe & Pervasive Standard Applies Only To Federal Claims
Notably, the EEOC makes its determinations about whether sexual harassment or discrimination is severe or pervasive enough to be unlawful is made on a case-by-case basis. Under New York law, however, the bad behavior need not be severe or pervasive in order to create liability – it simply must have credibly occurred without a prompt, appropriate response by the organization.
Special Considerations for New York Residents Serving on Nonprofit Boards
New York executives and professionals often are asked to serve on nonprofit boards because they bring judgment, relationships, credibility, and subject-matter experience. That service can be deeply meaningful. But in New York, board service isn’t merely symbolic. Directors, officers, and key persons of any New York nonprofit must discharge their duties in good faith and with the care an ordinarily prudent person in a similar position would use under similar circumstances.
In plain English: board members don’t need to [and shouldn’t!] run the nonprofit day to day, but they do need to pay attention, ask appropriate questions, and act in the organization’s best interests.
That matters when a nonprofit uses volunteers. If a volunteer is accused of discrimination, sexual harassment, retaliation, or other workplace-related misconduct, the board usually shouldn’t take over the investigation or insert itself into every personnel decision. But the board should make sure the organization has a lawful process for receiving complaints, investigating concerns, protecting against retaliation, and taking appropriate corrective action. Under New York State harassment standards, an employer can be liable for sexual harassment by non-employees, including people such as contractors, customers, or volunteers, when the employer knew or should have known about the harassment and failed to take prompt and appropriate corrective action within its control.
New York courts long have held that an employer isn’t automatically liable under the NYSHRL for every complaint about a discriminatory act of an employee or agent. But an employer can become liable when it becomes a party to the conduct by encouraging, condoning, or approving it. Condonation can include calculated inaction after the organization learns of discriminatory conduct.
Board Member Responsibility
For board members, the practical takeaway is this: don’t ignore red flags. If a complaint reaches the board, or if the board learns that management isn’t responding to known or suspected sexual harassment or discrimination on the basis of a protected class, silence can create risk for the organization.
Board members should insist on a documented, fair, and prompt response. Depending on the facts, that may mean referring the matter to the executive director, engaging outside employment counsel, using an outside investigator, reviewing whether interim protective steps are needed, and making sure retaliation doesn’t occur.
Protections for Board Members
Board members also should understand that New York law gives some protection to uncompensated nonprofit directors, officers, trustees, and key persons, but that protection isn’t absolute. New York Not-for-Profit Corporation Law § 720-a generally protects certain uncompensated nonprofit leaders from personal liability in damages, but it doesn’t protect intentional misconduct or gross negligence, and it has important statutory exceptions.
What does that mean? Simply put, if it’s a board member who’s behaving badly, whether it’s conduct against an employee or volunteer, there likely will be significant risk to the board member and the organization.
New York law also permits certain actions against directors, officers, and key persons for misconduct involving their official duties.
The Conflict of Interest Conundrum
Individuals serving on boards should also be very careful about conflicts of interest. New York nonprofits must have a conflict-of-interest policy that, among other things, defines conflicts, requires disclosure, and bars the conflicted person from participating in deliberations or voting on the matter.
In addition, nonprofits with 20 or more employees and annual revenue over $1 million generally must adopt and oversee a whistleblower policy that protects directors, officers, key persons, employees, and volunteers who report suspected improper conduct in good faith.
Board Member Practice Pointers
The safest course for individuals who’re asked to serve on nonprofit boards is to ask basic questions before saying yes:
- Does the organization have current anti-discrimination and anti-harassment policies?
- Does it train employees and, where appropriate, volunteers?
- Does it have a complaint procedure?
- Does it carry directors and officers insurance?
- Does it have employment practices liability coverage?
- Does it have conflict-of-interest and whistleblower policies?
- And does the board understand the line between governance and day-to-day management?
Board service is valuable, and New York nonprofits need thoughtful leaders.
But good intentions aren’t a substitute for good governance. When volunteers are part of the organization’s work, boards should make sure those volunteers are trained, supervised, and held to the same respectful-workplace expectations as everyone else.
Final Thoughts
Navigating the nuances of New York’s employment laws can be challenging. The Coppola Firm is here to help.
If you have any questions about how to train and manage volunteers, including conducting workplace trainings or any other aspects of employment law, feel free to contact us at 716.839.9700 or info@coppolalegal.com.
