Handling Harassment 101

By David Feingold, Esq. & Matthew Haulk, Esq.

Radical changes brought on by social media and electronic communications have resulted in an exponential increase in harassment claims in community associations. Often, the community manager is the first line of defense (if not the target) and the person whose action or inaction can escalate or defuse the situation.

This article provides the community manager with a brief summary of what legally actionable harassment is, and is not, and suggests a three-part process for handling harassment claims.

Social Media, Free Speech and Harassment

Social and electronic media have had many positive impacts for associations (and for trees.) Increased civility is not among them. Trolling, flaming, gaslighting, cyberbullying, and similar forms of digital harassment have become all too common.

When it comes to aggressive communications, the most common request we receive when the aggressor targets management or volunteer leaders is to send a cease and desist letter, demand a retraction from the author, threaten a lawsuit, or try to scare the aggressor away. Anything to make it stop. It’s not so easy.

The first step is to determine whether or not the offensive behavior falls within the legal definition of harassment. Threats of violence or physical harm are per se harassment. Those are easy calls. Most often, however, the alleged harassment falls into the vast gray area where free speech rights and actionable harassment intersect.

The legal definition of harassment in California includes any course of conduct that seriously alarms, annoys, or harasses, which serves no legitimate purpose, and which causes substantial emotional distress. It can be one (extreme) event or multiple events and may be via emails, texts, telephone calls, or in-person behavior or statements.

However, constitutionally protected speech is not harassment. Even speech that all (ok, most) would agree is rude, obnoxious, and false may be protected.

Community associations, as quasigovernmental entities, must respect the free speech rights of interested parties in the same way your local town council must. Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.

Community managers can help themselves and the volunteer directors they work with by understanding the issues and objectively evaluating the harassment claim before responding. The remainder of this article provides what we think is a useful three step process to evaluate harassment claims.

Think Like a DAD: Document, Analyze, Decide

While you may or may not have a fatherly figure that you see as a role model, think about what the best stereotypical “DAD” would do when confronted with a difficult issue. (No disrespect to Moms – DAD just happened to work with the mnemonic device.)

DOCUMENT

First, document the harassing behavior. Are there emails? Blog, vlog, or web posts? Nextdoor posts? Was it a single incident or a series of incidents? Was it nonverbal conduct or one or more face to face confrontations, and if so, are there witnesses? Any video or audio? Has the target of the attack kept a diary of events? All of this is critical.

ANALYZE

Next, analyze the harassment. What category of aggressor and target does it fall into? Is it Neighbor vs. Neighbor, Member v. Vendor, Member vs. Director, Director v. Member, Director vs. Community Manager, etc.? This is a critical step, and while each may require investigation and/or action, each category of aggressor v. target may warrant a different response.

For example, claims of harassment based on a person’s protected status require heightened due diligence. The Fair Housing Act requires that claims of harassment on the basis of race, color, religion, national origin, sex, familial status, and disability, be promptly investigated, and if warranted, that steps be taken to attempt to end the harassment (Code of Fed. Reg. §100.7(a)(1) (iii).).

Association employees are entitled to protection from harassment under California’s Fair Employment and Housing Act (FEHA), and this obligation is broad enough to apply to non-employees in certain circumstances, such as volunteers and management staff.

What is the context in which the alleged harassment occurred? Was it related to the emotionally charged association business, such as a director election or a special assessment vote, or was it unrelated to association business? Now that you have documented and analyzed the claim, you are in a position to help the board decide what to do.

DECIDE

The first step in making a decision is to brainstorm all of the available options, starting with informal steps to defuse the situation, such as:

Do Nothing

You know what they say about wrestling with a pig. Doing nothing may be the best decision.

Address the Membership

There are times when harassment is the result of fear or uncertainty. Sending out association wide updates on contentious issues often can specifically respond to issues raised by an aggressor (we like FAQ’s) and often reduces the harassing behavior and builds community. Providing forums to allow members to vent also helps lower the temperature.

Personal Outreach

Often the community manager (if not the target) is in a position to reach out to the aggressor as well as the target and deescalate a situation. It can also be an uninvolved board member, or other third party. Be creative.

Listen and Act

There are times when the act of listening, and perhaps taking some specific action to eliminate the source of the frustration, will work.

Social Media Terms of Service

While various federal laws protect internet service providers and social media platforms from liability for content, often lodging a formal complaint that the terms of service were violated can result in an offending post, such as a Yelp review, to be removed. Similarly, the moderators of Nextdoor forums may also restrict harassing speech.

Before formal action is taken, we recommend consulting with counsel, as formal action can backfire if not justified.

Options for formal action may include offering internal dispute resolution (IDR), holding a disciplinary hearing, an attorney cease and desist letter, a request for resolution (ADR), or in serious cases, seeking a temporary restraining order and injunction.

What Do We Take Away From This?

Regrettably, we often conclude that the speech or behavior, while ugly and often unfounded, falls within the individual’s constitutionally protected free speech rights.

Working with community associations has always required a thick skin and solid diplomacy skills. Today, those two attributes are more important than ever before.

David F. Feingold, Esq.

Matthew A. Haulk, Esq.

David F. Feingold, Esq., and Matthew A. Haulk, Esq., practice community association law in the San Francisco Bay Area and are partners in the Marin County law firm of Ragghianti Freitas LLP.