CFI’s New Policy on Hostile Conduct/Harassment at Conferences

June 29, 2012

Warning: the reaction of some of you to this post may be “tl;dr.” Fine, I’ve already posted some abbreviated comments on CFI’s new policy and you can limit yourself to reading those comments if you want. Others, however, may be interested in a longer discussion.

Genesis of the policy: Since 2007, CFI has had a zero-tolerance policy for harassment by employees. The policy is set forth in the employee handbook. However, we did not have a policy regarding harassment by nonemployees at our conferences. One benefit of attending the Women in Secularism conference in May was that it became apparent to me, based on comments from some of the speakers, that there was a need for such a policy. In consultation with CFI’s Management Committee, I decided that CFI should develop such a policy.

Formulation of the policy: Over the next several weeks, I received comments from a number of individuals, both solicited and unsolicited, regarding both the wisdom of having a policy and the desirable contents of such a policy. I thank everyone who submitted comments, whether I agree with them or not. I believe all the suggestions were made in good faith and reflected concerns for the success of the secular/skeptic movement. Ultimately, the contents of the policy are the responsibility of the CFI Management Committee. However, I think it would be appropriate to comment on some of the concerns as this will help elucidate what is and is not prohibited under CFI’s policy and how CFI will administer its policy. I will do so below.

Rationale for the policy: First, let’s step back a bit and ask why employers are effectively required to have policies prohibiting harassment, whether it’s sexual harassment or harassment based on protected group status. (I say “effectively” because absent such a policy, an employer has a much greater risk of legal liability.) This may shed light on why it’s also prudent for conference organizers to have such policies, especially conference organizers who try to create an atmosphere that promotes intellectual exchange.

At least in the United States, the primary rationale for workplace policies is not that employers have an obligation to ensure that all their employees are “nice” to each other. Rather, it is that harassment interferes with an employee’s ability to work; employers can be liable for such harassment when it is so severe that it “alters the conditions of employment and creates an abusive working environment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Workplace harassment policies are actually intended to help both employees and employers. Properly administered, they increase workplace efficiency.

CFI believes we should look at the goals of a harassment policy for conferences in an analogous light. A primary objective of our policy is to ensure that everyone at our conferences — speakers, attendees, and staff — will feel safe and at ease and be able to participate fully in all conference-related events. Intimidation and harassment prevent this objective from being achieved, so such conduct should be prohibited.

This is why we have embedded our harassment policy within the context of an overall prohibition on hostile conduct. We seek to prohibit any abusive conduct “that has the purpose or effect of unreasonably interfering with another person’s ability to enjoy and participate in the conference, including social events related to the conference.”

Looked at this way, CFI’s policy supports the goals of CFI in holding conferences, just as workplace policies support the desires of rational employers for workplace efficiency. CFI’s policy promotes friendly interaction among conference participants, including the candid exchange of viewpoints, and this, in turn, helps ensure a successful conference.

This leads me to comment on one of the objections I received to implementing a harassment policy.

Interference with free speech: Some have expressed the concern that a harassment policy will inhibit speakers in their presentations and frank and open discussion among conference participants. CFI does not regard this as a significant risk. We expect to have the same wide-ranging, vigorous debates that we have traditionally enjoyed at our conferences. In any event, CFI’s policy expressly states that “critical commentary on another person’s views, does not, by itself, constitute hostile conduct or harassment.”

For guidance, it might be helpful to look again at harassment law in the employment context. To be actionable, workplace harassment must be both objectively abusive and subjectively abusive; in other words, it must be conduct “that a reasonable person would find hostile or abusive and one that the victim did in fact perceive to be so.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). CFI intends to employ this standard in applying its policy. In other words, before CFI would take remedial action against a speaker, or anyone else, the speaker’s conduct must be objectively abusive. We do not regard this as a material restriction on free expression.

Vagueness: Some have expressed a concern that harassment policies are too vague. In particular, language that remains in CFI’s policy prohibiting “unwelcome sexual attention” has been criticized as failing to provide people with sufficient notice regarding what type of conduct is prohibited. Some suggested that the word “repeated” be inserted before the phrase “unwelcome sexual attention.”

We believe the language is appropriate as written. As already indicated, our aim is to apply the policy in a way that is objectively reasonable using contemporary standards. It is not our intention to prohibit flirting or a polite expression of interest in another person. For example, without more, the question, “Would you be interested in having a drink later?” would not be considered harassment.

But one-time expressions of interest/invitations to an encounter could be inappropriate under the policy, which is why inserting the word “repeated” in the policy would be unwise. To take a crude example (those with delicate sensibilities can skip ahead), asking someone “Wouldn’t you like to bury your head in my crotch and suck my dick?” could constitute harassment, even if it is said only once and accompanied by no other action.

No matter how detailed the policy, it could not cover every contingency, every circumstance, and every context that could be relevant to an evaluation of a person’s conduct. CFI believes that as written the policy provides sufficient notice of prohibited conduct.

Interference with consensual sex: CFI has no opposition to consensual sex among adults; indeed, this organization has long championed the right of individuals to engage in such conduct, and has protested restrictions on such conduct based on religious dogma. CFI’s policy does not interfere with consensual sex. It’s unwelcome sexual attention that is prohibited, not welcome sexual attention.

Sexual imagery and language: One of the sample policies that has been circulated for consideration prohibits “sexual language and imagery,” including during talks. CFI declined to include such a provision.

In this post, I have on a couple of occasions analogized restrictions on harassment at conferences to restrictions on harassment in the workplace. But there are also significant differences between a workplace setting and conferences. Employers have wide latitude to restrict what their employees say or wear. Most workplaces are
not free speech zones. Employees are there to work and not to engage in wide-ranging discussions.

Conferences have different purposes.  Speakers are there to convey information and stimulate discussion. CFI has had speakers who have given presentations on topics related to sex, and we may do so again in the future. Sexual language and imagery may appropriately be used during such presentations. Admittedly, a speaker might engage in objectively outrageous conduct during her/his presentation. If so, that conduct will be addressed. A broad ban on sexual language and imagery is unwarranted, however.

Presumed guilt: Some have expressed concern that alleged harassers will be presumed guilty. There is no presumption of guilt under CFI’s policy.

On the other hand, there is also no presumption of innocence. Neither allegations from the accuser nor denials from the accused will carry any special weight.

With respect to process, CFI will treat all complaints seriously and will take reasonable measures to investigate complaints, including interviewing the alleged harasser. Only after the relevant facts have been gathered will CFI make a judgment regarding appropriate remedial action.

Of course, in some instances, the conduct in question will have taken place in plain view before CFI staffers. In that instance, immediate action may be taken without the need for an investigation.

Blacklist: Some have expressed concern that conference organizers from different secular/skeptical groups will create a “blacklist” which will result in the banning of certain individuals, even when they have not been provided with an opportunity to rebut any allegations.

CFI will document complaints of harassment, including information on how those complaints have been resolved. This documentation is for CFI’s own use in conducting investigations and in organizing its conferences. Repeated instances of harassment may result in a decision not to invite a particular speaker or a decision to ban a particular individual from attending CFI’s conferences.

However, the documentation will treated as confidential and will not be shared with other organizations, nor will CFI rely on hearsay regarding conduct at conferences held by other organizations.

Further observations: No policy is likely to be perfect. That said, we believe CFI’s policy should be reasonably effective in preventing abusive conduct at our conferences and in making our conferences productive and enjoyable events for everyone. To the extent experience indicates our policy needs to be modified, we will not hesitate to do so.

Finally, I note that there has been a fair amount of discussion in the blogosphere during the past several weeks regarding harassment at conferences and related topics. I cannot say I have read all the blog posts or followed all the threads, and in part for that reason I am not going to comment on any particular controversy. (I think being a skeptic implies a willingness to withhold judgment when one is not sufficiently acquainted with the relevant facts.) I’ll limit myself to saying that although vigorous debate is generally a good thing, we should also be careful about interpreting a mistaken claim or assertion as indicative of a flaw in character. Unfortunately, it’s not just the religious who tend to demonize the opposition. In engaging in debate with our fellow skeptics/atheists we should be trying to build bridges, not burn them.