Legal Notes: Code of Conduct

It seems that every few months or so, the Twitter and blog-o-spheres burn up over the topic of Codes of Conduct. Specifically, the issue is whether or not a conference should have a formal and publically posted code of conduct. I've written and commented extensively on this very topic. As a general matter, I believe codes of conduct for any event, whether it's a software conference, convention, or sporting event, etc., is a good idea. At the same time, I don't believe an event's worthwhileness turns on the presence or absence of a code of conduct. If you're going to implement a code of conduct, it needs to be reasonable, clear in its intent, and, above all, enforceable. In addition, before you decide to implement a code of conduct, you should be clear about the potential liability that can be incurred as a result of implementing such a code. In this article, I'll review the text of what is likely the most pervasive code of conduct today: http://www.confcodeofconduct.com, which is a repost of the one found at: http://geekfeminism.wikia.com/wiki/Conference_anti-harassment/Policy.

DISCLAIMER: This and future columns should not be construed as specific legal advice. Although I'm a lawyer, I'm not your lawyer. The column presented here is for informational purposes only. Whenever you're seeking legal advice, your best course of action is to always seek advice from an experienced attorney licensed in your jurisdiction.

The Typical Conference Code Of Conduct

What follows comes from http://www.confcodeofconduct.com (licensed under the Creative Commons Attribution 3.0 Unported License). Many conferences today adopt some form of this code. After each section, there's an annotation of the issues associated with that section.

All attendees, speakers, sponsors, and volunteers at our conference are required to agree with the following code of conduct. Organizers will enforce this code throughout the event. We are expecting cooperation from all participants to help ensuring a safe environment for everybody.

The first issue with this opening paragraph is the requirement that attendees, speakers, sponsors and volunteers agree with the following code of conduct. The problem is that there's usually never a mechanism to manifest that agreement. The second issue is the expectation of cooperation from all participants. This is an example of inconsistent language and a lack of defined terms. At the outset, a specific list of persons (attendees, speakers, sponsors, and volunteers) is enumerated. In the next sentence, all of that appears to be collapsed into a single term – participants. Also, while there is an expectation of cooperation, there is no tacit requirement. Language matters in documents that are expected to be legally binding. Right off the bat, this model code of conduct is off to a bad start.

Need Help?

You have our contact details in the emails we've sent.

This may or may not be true. For any legal document to succeed, the specific terms need to be contained within its four corners. Alternatively, there need to be links so that you can easily access the supplemental material. Assuming that certain information has been received and comprehended in emails that may or may not have been delivered is shaky ground at best.

The Quick Version

Our conference is dedicated to providing a harassment-free conference experience for everyone, regardless of gender, gender identity and expression, age, sexual orientation, disability, physical appearance, body size, race, ethnicity, religion (or lack thereof), or technology choices. We do not tolerate harassment of conference participants in any form. Sexual language and imagery is not appropriate for any conference venue, including talks, workshops, parties, Twitter, and other online media. Conference participants violating these rules may be sanctioned or expelled from the conference without a refund at the discretion of the conference organizers.

This section is meant to be an abbreviated summary of the next longer section. I'll defer most of the analysis for the longer paragraph on which this summary depends. There are, however, three things that need to be pointed out. First, there is a pattern of having enumerated lists to define entities. In the first paragraph, it was the list of persons covered. In this paragraph, it's a list of protected traits. Whenever there are lists such as these, they become words of limitation, meaning that if something is not contained in the list and there was an opportunity to have a more inclusive list, there's a strong argument that the omitted term was not meant to be covered. This is why you often see the phrase including, but not limited to. With that magic phrase, the list becomes one of inclusion with a list of examples to help illustrate what could be included in a list.

If you're going to implement a code of conduct, it needs to be reasonable, clear in its intent, and above all, enforceable.

The second issue relates to the mention of the venue. Conferences never own the venues. Rather, conferences sign agreements with the host convention center, hotel, etc. Those agreements require that conferences abide by the facility's rules, which may include a code of conduct. The irony is that a conference may not be allowed to substitute its own code for the one that already exists for the property.

The third issue relates to the last sentence where a violating participant may be sanctioned or expelled. Given the climate around these codes, you'd think that any violation would result in immediate expulsion. A good alternative to review is a code from Lincoln Financial Field, the home of the Philadelphia Eagles: http://www.lincolnfinancialfield.com/fan-code-of-conduct/. In the fan code of conduct, the language is much more direct. Also, take note of the last bullet item that reads: Any behavior which otherwise interferes with other fans' enjoyment of the game. This is equivalent to and better, in my opinion, than the phrase including, but not limited to.

The Less Quick Version

Harassment includes offensive verbal comments related to gender, gender identity and expression, age, sexual orientation, disability, physical appearance, body size, race, ethnicity, religion, technology choices, sexual images in public spaces, deliberate intimidation, stalking, following, harassing photography or recording, sustained disruption of talks or other events, inappropriate physical contact, and unwelcome sexual attention.

What if a joke is made about someone's political affiliation or stance on a social issue like gun control? Those items are not contained in the list that defines harassment. The goal of what this paragraph seeks to achieve is laudable. The bottom line, however, is that there is an intent to make this a legally binding and enforceable document. The downfall of any legal document results from ambiguities, which is normally from the result of undefined and inconsistent terms.

Participants asked to stop any harassing behavior are expected to comply immediately.

I mentioned earlier the issue with the undefined phrase participants. The other problem is the phrase expected. A better, more appropriate word would be required.

Sponsors are also subject to the anti-harassment policy. In particular, sponsors should not use sexualized images, activities, or other material. Booth staff (including volunteers) should not use sexualized clothing/uniforms/costumes, or otherwise create a sexualized environment.

Three paragraphs in, sponsors are now included. This issue is related to the undefined term participants. There needs to be a section or a defined term early in the text that clearly spells out who is covered under the policy. There's a liberal use of the word should as opposed to the word shall. If the goal is to have a policy with teeth in it as to enforceability, then there can't be any question as to discretion on the part of individuals expected to be covered under the policy. There's also a distinction between participants and sponsors. Why are there two separate terms? Do we need different terms? Is the intent that there should be a difference in how the two are treated under the policy? These are the sorts of questions, ambiguities, and unintended consequences that arise when non-lawyers draft legal documents.

If a participant engages in harassing behavior, the conference organizers may take any action they deem appropriate, including warning the offender or expulsion from the conference with no refund.

This section implies that the conference is not a corporate entity, but rather, a group of affiliated individuals. It's important to note that “Conference Organizers” are not themselves, a legal entity. Rather, they are simply a group of people putting on an event. It may very well be that the entity who signed an agreement with the venue is in fact, a legal entity. In such a case, it's the entity, not the individuals, who should be referenced in such a code and not the organizers. Also, the action is not absolute. In other words, the possibility exists that even if somebody engages in harassing behavior as defined under the policy, no action would be taken against that individual.

If you are being harassed, notice that someone else is being harassed, or have any other concerns, please contact a member of conference staff immediately. Conference staff can be identified as they'll be wearing branded t-shirts.

Conference staff will be happy to help participants contact hotel/venue security or local law enforcement, provide escorts, or otherwise assist those experiencing harassment to feel safe for the duration of the conference. We value your attendance.

We expect participants to follow these rules at conference and workshop venues and conference-related social events.

The goal and intent of these last sections appears to be clear: to make people feel safe. The problem is, the language is largely unworkable for several reasons. First, it's extremely broad and ambiguous. Second, as mentioned previously, there are no definitive requirements for what constitutes harassment. Third, there's an attempt to make conference participants part of the policing apparatus. Although there's the generic requirement that we all stay within the generally accepted boundaries of socially and legally acceptable behavior, the health, safety, and welfare of conference attendees rests squarely with the venue and the conference entity. Rather, there are simply expectations. There's also the issue with training. Conference volunteers rarely have the training necessary to deal with the situations contemplated in the code of conduct. Going back to the agreements between the venue and conference, there's normally an affirmative requirement on the part of the conference to report any incidents to the venue directly. The irony is that the possibility exists that the mere presence and attempted enforcement of a non-venue code can result in breach of the agreement between the venue and the conference.

An Alternative Code of Conduct

The idea of a code, or, as I like to put it, a standard of conduct is a good thing. If nothing else, it provides an objective yardstick that everyone can reference. It puts everyone on notice and under the same standard. For that to happen, however, there must consistent and unambiguous language. I've created such a standard that can be found here: https://gist.github.com/johnvpetersen/8873654. The text is as follows:

Who is Covered?

Anyone who is affiliated with this Conference (The “Participant”) is expected to conduct themself in a civil manner and treat any other Participant with respect and civility. (The “Standard of Conduct”). A Participant includes, but is not limited to any Conference attendee, guest, sponsor, or staff.

Anybody who could be associated with a conference is covered. There's a clear definition of what a participant is. Most importantly, there are no words of exclusion such that a group could fall through the cracks and not be covered.

What is Covered?

The Standard of Conduct is defined by what is deemed to be generally accepted by the Conference; the conference location (the “Venue”); the Venue's own standards of conduct, rules, and regulations; or any legal authority to which the Venue or Participant is subject. Any other conduct by a Participant that otherwise disrupts another Participant's Conference experience shall be covered as well.

One of the biggest problems I see with the typical conference code of conduct is that it attempts to cover all forms of harassment and offensive behavior through specific enumerated lists. It's impossible to capture, in specific words, all of the possible forms of offensive conduct and protected classes of people. Broken down most simply, anybody who attends the conference, whether that person is an attendee, guest, staff, sponsor, or etc., is covered and each owes a duty of respect and civility to each other. That's the ethical part of the standard. Respect and civility encompass everything and therefore, there's no requirement to list specific examples. I also hook in the legal requirements. Between the ethical and legal requirements, every possible behavior is covered. With fewer and the right words, you end up with something that covers much more the typical conference code of conduct that we see today.

How is this enforced?

Only timely and direct reports of violations with sufficient factual details to the Conference organizers can be investigated. Upon investigation, allegations may result in sanctions including, but not limited to, expulsion from the Conference and Venue without recourse. Any report deemed to have not been made in good faith or with a reasonable factual basis may be treated as a violation. Investigations and sanctions imposed shall be conducted and determined at the sole discretion of the Conference. Nothing in this Standard of Conduct interferes with or discourages a Participant from exercising his or her right to contact the Venue and/or law enforcement directly and, in such a case; the Conference shall fully cooperate with the Venue and law enforcement.

The enforcement section is probably the biggest deviation from the typical code of conduct that we see. Such a standard is a shield, not a sword. That said; if somebody lodges a complaint in bad faith, there should be accountability for that as well. That may be an issue for some that contend that such a phrase may be a bar to those who have a legitimate issue. As I see it, there needs to be at least a modicum of due process. Above all, any reported violation must be timely and must contain sufficient facts for an investigation to reasonably conclude that there was a violation. That's a pretty low bar to meet. At a minimum, such facts have to include who the alleged parties are and what transpired. As the above standard makes clear, if the complaining party doesn't feel they are getting an adequate remedy, he or she is free to contact the venue or law enforcement directly.

At 235 words, this code of conduct is about 140 words less than the typical conference's version. The gaps and ambiguities that exist in the typical code of conduct are resolved. In my standard of conduct, there are no gaps as to who and what is covered and how the standard is enforced. There are defined terms where necessary and as a result, there are no ambiguities because there's no deviation from those defined terms. Above all, it puts everyone under the same standard. No document, no matter how well drafted, can absolutely guarantee that everyone will be free of a negative experience. Somebody who insists on being a jerk and ruining an experience for others will always have deaf ears when it comes to respecting boundaries. The remedy? Eject them with no recourse. Conference attendees are best classified as licensees. Like with any other license, there come duties and responsibilities. It's a privilege and under some circumstances, that privilege can be revoked. The key is when dealing with such a situation, you, as the conference organizer, need to be able to point to a document that is clear and unambiguous, as those are the hallmarks of an enforceable document.