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Duty of care to shield workers from sexual violence extends to nonprofits


WASHINGTON — Nonprofit employers have a legal obligation to take reasonable risk management steps to protect their employees from sexual violence within and outside of their organizations, particularly those traveling overseas.

A 2016 survey by the Humanitarian Women’s Network of workers at 70 humanitarian and development agencies found that 4% of respondents reported an incidence of rape, while 48% reported an incidence of other sexual violence and 55% reported an incidence of sexual harassment.

Nonprofit organizations have a duty of care to provide a full warning of foreseeable dangers and provide a reasonably safe working environment, and can be held liable if they are negligent for failing to do so, even if there is a lack of firm guidance about these subjective duties, Carolyn Klamp, partner at Klamp & Associates P.C. in Washington, said at a panel discussion at the National Democratic Institute in Washington on Tuesday.

“It’s hard to figure out what an organization is supposed to do,” she said. “What happens in the courts and in law offices is that they get judged against peers. The standard is what would a prudent similar organization do.”

But basic steps every organization should take include conducting an adequate risk assessment of the risks of traveling to other countries and developing policies and procedures to mitigate those risks.

“And it shouldn’t just be a basic, off-the-shelf security policy, because that won’t be designed to mitigate the risks that your organization faces,” Ms. Klamp said.

Nonprofit organizations should also devote adequate resources such as insurance and security to addressing the risks and conducting trainings, briefings and providing written and oral warnings to employees about the risks.

“There’s been an exponential improvement in the duty of care for the sector, but there’s still work to do around sexual assault,” Ms. Klamp said. “The number one thing is warnings. There are just too many humanitarian and development workers who travel to regions that have high incidences of sexual assaults that aren’t aware of it.”

In addition, organizations should have good crisis management teams and aftercare programs in place, with adequate insurance being a critical component in providing quality care to survivors, she said.

“One of the key pieces is really talking about the risk with brokers and making sure you’re clear about where you go, how you go there, who goes there on your behalf,” said Joe Gleason, risk management director at insurance brokerage AHT Insurance in Washington “You can get a lot of insurance, but if it’s not the right insurance it really isn’t there where you need it. Really dig deeper than the basic wording. Ask questions about this risk in particular, how would sexual violence be treated in workers compensation, health insurance policies.”

Employers must take allegations of sexual comments and harassment seriously because those incidents can escalate into sexual assault, making it critical that they enforce their anti-harassment and other policies, particularly against their own employees, including discipling them when appropriate, experts say.

“There’s a different legal standard if the attacker or the assault comes from within your organization,” Ms. Klamp said. “If the attacker comes from within the organization, you have a heightened responsibility to prevent it.”

“If we think about this as a continuum, we want to take the lower level, less overt, more subtle incidences seriously as a way of building that culture of prevention and response in an organization,” said Lynne Cripe, director of resilience services at consultancy The KonTerra Group in Washington.

While 87% of sexual assault survivors in the humanitarian and development sector are female, according to a separate survey by the Report the Abuse organization, “we need to remember that there are male survivors as well,” she said. “We also need to think about how LGBTQ issues factor into vulnerability and some of the dynamics around support, reporting, etc. Particularly in cultures where issues of sexual identity, being gay, being trans may be illegal, the repercussions for even reporting can be life-threatening.”