When It Happens to You: Responding to Reports of Harassment and Discrimination

Zelina Gaytan was a museum attendant at the San Diego Museum of Art. On July 9, 2021, she filed a lawsuit against her former employer alleging pervasive sexual and racial misconduct. Among other allegations, she claims teenage staff members were repeatedly asked out on dates and followed to their cars by older staff, volunteer docents referred to darker Latinos as “savages” and likened Frida Kahlo to a “Muppet”, and that Black and Latino employees weren’t promoted to leadership roles. Gaytan claims that she reported these issues to the museum on multiple occasions, but that they repeatedly failed to address and in fact dismissed her claims. In her words, the museum, “had and continues to have a systematic practice of ignoring complaints of sexual harassment and failing to take any preventative action.”

Gaytan’s lawsuit demonstrates that the art world isn’t immune to issues of harassment and discrimination. In the past two years, many well-intended, progressive arts organizations have been forced to confront these issues within their workplaces. As Gaytan’s lawsuit highlights, failure to adequately address employee harassment and discrimination claims can potentially have legal consequences.

This concern is of particular importance to small arts organizations. They often lack a Human Resources professional on staff who would typically handle these issues. They often rely on an operations manager or other administrator to handle HR functions, but this employee may not be trained on the sensitivities of workplace harassment and discrimination. Other organizations may turn to an executive or artistic director to resolve these kinds of concerns, but they, too, may lack training or overall bandwidth to properly address.

Given this predicament, small arts organizations should prepare for the event, however unlikely, that harassment or discrimination concerns may emerge in their workplace. Specifically, they should develop an internal complaint procedure, if they don’t already have one, to provide a formal structure for responding to such concerns. The implementation of such a framework will not only help eliminate ambiguity for employees on how to report such claims, but will also provide small organizations with a process they can consistently follow if and when such claims are raised. When followed, the procedure not only minimizes legal exposure, but promotes a more respectful and inclusive workplace.

The Legal Context - Title VII and the Illinois Human Rights Act

Title VII of the Civil Rights Act of 1962 is the federal law that prohibits harassment and discrimination in the workplace. It defines an employer for purposes of the Act as an entity that has fifteen or more employees. As such, an Illinois arts organization with less than fifteen employees is not considered an employer under Title VII and cannot likely be sued under federal law.

That said, the Illinois Human Rights Act (IHRA) is a state law that provides similar protections against harassment and discrimination in the workplace. Until a few years ago, the IHRA only applied to employers with fifteen or more employees, except when it came to sexual harassment, pregnancy discrimination and disability discrimination. Effective July 1, 2020, however, the IHRA was amended, expanding the definition of employer under the Act from fifteen employees to those with “one or more employees.” Thus, while small employers could once only be held liable for a limited number of issues, the amended IHRA expanded this potential liability to a variety of harassment and discrimination claims based on race, national origin, sex, sexual orientation, religion, and other protected characteristics.

Ideal Features and Principles

A small arts organization’s internal reporting procedure for harassment and discrimination should ideally be driven by the following features and principles:

1. Clear, basic steps – it’s important that the process for reporting concerns of harassment and discrimination be as clear and simple as possible. The more complicated or burdensome the process, the less likely an employee is to come forward, which enables potentially problematic behavior to continue.

2. Multiple points of contact – a reporting procedure should clearly identify to whom concerns of harassment and discrimination should be directed. Moreover, the procedure should provide multiple points of contact. Not all complaints should be directed at one individual, such as an administrative manager or executive director, as they may be the subject of the complaint. An organization may wish to designate one or two board members who might also serve as points of contact. As with all sensitive workplace issues, attention should be paid to the demographics of those tasked with receiving and responding to complaints – where possible, there should be a variety of races, ages, genders, and sexual orientations represented.

3. Commitment to Serious and Prompt Resolution – a reporting procedure should expressly state that all claims of harassment and discrimination will be taken seriously and addressed promptly. Even if an organization’s leadership believes that the reported behavior is insignificant, if allowed to continue, it may escalate. Minor conduct may rise to the level of illegal behavior.

4. No Retaliation – fear of retribution is one of the biggest hurdles employees face when deciding whether to report concerns of harassment or discrimination to their employer. A reporting procedure should expressly state that employees will not be subject to retaliation or any other adverse consequences for coming forward with concerns.

5. Neutrality – a reporting procedure should stress that the organization will consider all complaints from a neutral standpoint. During the entirety of the process, an organization should not take sides and should afford all involved the opportunity to be heard before reaching any resolutions.

6. Balanced, Culture-Specific Conversations – one of the more difficult parts for a small arts organization in responding to complaints of harassment or discrimination will be speaking with the individuals involved. As every organization is different, each must determine an approach that best fits its workplace culture. Generally, the first conversation should be with the reporting employee, then any “witnesses” who may have additional helpful information, and then finally the individual or individuals accused of the behavior. These conversations should balance open-ended questions that allow participants to speak freely with more pointed, specific questions that enable the organization to gather the information it needs. Notes may be helpful as a record of the conversation but may bring too much formality to the process. Where possible, two facilitators should be present for any conversations to allow for a more collaborative process and to corroborate the content of the conversation.

7. Creative, Industry and Culture-Based Outcomes – after the conversations themselves, a small arts organization will then face the difficult task of deciding what comes next. Before rushing to quick, severe action like termination, the organization should consider a variety of outcomes. They should likely evaluate the suitability of these potential outcomes during their conversations. For example, they should assess when speaking to the involved individuals whether an apology, a commitment to policy change, or a change in workplace conditions might be appropriate. Where possible, the organization should consult with others in their industry to ensure an outcome is in line with both how their peers resolved these issues and their specific workplace culture.

8. Final Communications – an organization should consider whether any final, debriefing conversations with those not immediately involved would be beneficial. Without some form of acknowledgment of a resolved situation, these individuals may be left wondering what happened or even improperly conclude that the organization did nothing in response. At the same time, sharing the circumstances too broadly might draw too much attention to what could be perceived as a private, confidential matter. An organization should assess the value of any final communications on a case-by-case basis.

Conclusion

Harassment and discrimination do not exist only in Hollywood or corporate America. As Zelina Gaytan’s lawsuit demonstrates, even the art world isn’t immune to these issues. Larger arts organizations, with more resources and staff, are likely better equipped to respond to such issues in their workplaces. Smaller organizations, meanwhile, have less resources and staff that may affect their ability to address such concerns. And, as of 2020, smaller arts organizations in Illinois may face legal liability for even more types of workplace harassment and discrimination claims. Those organizations that take the time to proactively develop an internal complaint procedure set themselves up to better respond to these issues if and when they emerge. In doing so, they not only strengthen their legal position, but also promote a more respectful and inclusive workplace.

[1] Zelina Gaytan v. San Diego Museum of Art, Case No. 37-2021-00029485-CU-WT-CTL, Superior Court of the State of California, Central Division, Complaint for Damages, July 8, 2021.

[1] Trudy Brunot, Differences in the Roles of HR in Profit & Nonprofit Organizations, AZCentral, https://yourbusiness.azcentral.com/differences-roles-hr-profit-nonprofit... Tess C. Taylor, The Implications of Having No HR for Employees, ADP, https://www.adp.com/spark/articles/2018/10/the-implications-of-having-no... How to Manage HR Without an HR Department; NonprofitHR, https://www.nonprofithr.com/how-to-manage-hr-without-an-hr-department/

[1] 42 U.S. Code § 2000e(b).

[1] 775 ILCS 5/2-101(B)(1)(a).

[1] Sexual Harassment in the Nonprofit Workplace, National Council of Nonprofits, https://www.councilofnonprofits.org/tools-resources/sexual-harassment-th....

[1] Id.

[1] Id.; Melanie Lockwood Herman, Workplace Harassment: An Unacceptable Risk, Nonprofit Risk Management Center, https://nonprofitrisk.org/resources/e-news/workplace-harassment/; Daniella McGuigan, Addressing Race Discrimination Complaints in the Workplace, Ogletree Deakins, https://ogletree.com/insights/addressing-race-discrimination-complaints-...

[1] Id.

[1] Sexual Harassment Allegations: What Nonprofits Need to Do, Gordon Fischer Law Firm, https://www.gordonfischerlawfirm.com/sexual-harassment-allegations/