Evolving Risks — Employment Practices / Sexual Harassment / Unlawful Discrimination

by Edward A. Schirick, C.P.C.U., C.I.C., C.R.M.
September 2016

In 2015, there was a sharp increase in the number of calls to the ACA Crisis Hotline about accommodation and inclusion of individuals, both staff and campers, who identify themselves as transgender, gender nonconforming, or gender variant.

There is no federal law in the United States that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity, although one has been proposed in Congress many times beginning in 1994. In the absence of a federal law, many states and some cities and counties in the US addressed transgender discrimination by passing their own anti-discrimination laws. New York was the first to include transgender protections in 2010.

Time to Update Your Camp’s Employment Policies

Camp directors quickly acknowledge staff is one of the keys to a successful camp experience. So your policies and practices for identifying, selecting, training, and managing your camp staff is one of the most important key result areas demanding your attention.

ACA recognizes this also. In fact, if your camp is accredited, you know ACA Standards include an extensive section on Human Resources management (HR.1 through HR.21). Screening, selection, and employment are addressed by standards HR.3 through HR.7. Did you know there have been some recent revisions to mandatory HR standards? Standards HR.3, Hiring Policies, HR.4, Annual Staff Screening, and HR.5, New Staff Screening, were updated in January of this year.

  • HR.3, Hiring Policies, requires a job application and screening process for each job category with a review by legal counsel or HR personnel within the last three years. It also requires the use of additional screening techniques, which must include a criminal background check for year-round staff on the camp property at least every five years.
  • HR.4, Annual Staff Screening, requires employment policies to include a voluntary disclosure statement, check of the National Sex Offender Public Website, and a criminal background check for all staff on the camp property.
  • HR.5, New Staff Screening, requires a criminal background check, a minimum of two references, and a personal interview for all new staff based on the camp property.
  • HR.6, Job Descriptions/Information, requires job descriptions and information on the nature and diversity of the camp program and population served.
  • HR.7, Personnel Policies, requires written policies that address benefits, time off, performance evaluation, and personal conduct, as well as anti-bullying, anti-harassment, and anti-discrimination policy statements.

Compliance Risk

Bringing your camp’s policies and practices into compliance with the ACA Standards is an important task. Managing camp human resources beyond the ACA Standards continues to be a substantial challenge in light of the number and complexity of federal, state, and local laws governing employment.
Federal laws affecting camp employers include the Civil Rights Acts of 1866, 1964, and 1991. These laws prohibit discrimination in employment based upon a person’s race/color, national origin, gender, religion, and age.

Other laws governing employment include the Equal Pay Act of 1963, which requires equal pay for jobs requiring equal skill; Age Discrimination in Employment Act of 1967, which protects workers over age 40; the Americans with Disabilities Act of 1990, which protects disabled workers from discrimination; and the Pregnancy Discrimination Act of 1978, which requires employers to treat pregnancy the same as any other disability or illness. Other federal and state laws regulating employment may also apply.

What Is Your Strategy?

As our society changes it is imperative we embrace the opportunities created by diversity and inclusion. From a risk management perspective, keeping employment policies and practices current is a task that requires team work and a back-up plan.

Assuming you already have an employee handbook or staff manual in use, an aggressive strategy to manage employment practices risk is to conduct an annual review of policies and practices from the standpoint of your own camp’s experience. Like all of your other risk management documents, the employee handbook/manual will always be a work in progress. Consider making one person primarily responsible for keeping it up to date. Besides focusing responsibility, keeping your employment policies and practices current depends upon finding reliable sources for information.

Consider Employment Practices Liability Insurance

Complying with the letter of the law is challenging. Doing the right thing for the right reason at the right time is the goal. Unfortunately, mistakes are made, and that’s the primary reason to consider insurance.

A hidden, reliable resource makes buying employment practices liability insurance (EPLI) good management and a good value. Most insurance companies offer a human resources or hotline service to their policyholders, which is included in the premium.

This approach — combining risk management and loss prevention services along with insurance protection — has proven to be very effective for both policyholders and insurance companies. Most of these services are provided by independent contractors. They are happy to talk about specific employment issues, such as proper process for terminating an employee, and more than willing to review a customer’s employee handbook or manual and offer recommendations for improvement.

Cost-effective Investment

This is a cost-effective approach on several levels. First, by reviewing your employment policies and practices annually, you’ll take the first step toward minimizing your camp’s employment practices risk. Second, using the resources available from ACA and through your employment practices liability insurer, you’ll minimize the expense of an attorney review of your job application and screening process every three years to comply with HR.3. Employment practices law is a specialty, and attorneys can charge upwards of $500 an hour for their services depending on your location.

When We Make Mistakes or Are Accused of Making a Mistake

EPLI also makes sense because of the complexity and evolving risk in the employment arena.

EPLI may be purchased as an addition to director’s and officer’s liability insurance if your camp is religiously affiliated or not for profit. Otherwise, for private camps it is a separate policy.

EPLI pays sums your camp becomes legally obligated to pay because of a wrongful employment act. EPLI policies are not standardized. Consequently, it is recommended that your insurance broker solicit a couple of proposals from qualified insurers offering the human resources consulting services and compare the definition of wrongful employment between the proposals. This will help you find the broadest coverage available.

Generally, EPLI policies respond to wrongful employment acts such as wrongful termination, sexual harassment, and unlawful discrimination arising from your camp’s employment activities. This includes employees as well as applicants for employment.

Camp Claim Activity

Camp employment practices claims for wrongful termination are infrequent, but if one is brought it will often involve full-time staff.

Sexual harassment claims may be more frequent, as they often develop out of the personal relationships that naturally form at camp between staff. A claim may develop when one employee wants to end the relationship but the other doesn’t. Once the employer is notified of these situations action must be taken to protect the party ending the relationship. Failure to do so may result in an employment practices liability claim.

Allegations of unlawful discrimination are also not uncommon. So an important and essential extension of EPLI coverage for camps is third-party discrimination protection. Some insurers provide third-party discrimination insurance automatically, but others require that coverage be added by endorsement to their policy.

Basically, third-party discrimination coverage extends, for example, to allegations a camper was denied enrollment in camp because the camper tested HIV positive. If such allegations were proven, an EPLI policy with third-party discrimination coverage would respond to the litigation and pay damages.

Manage Change Effectively

Update your camp’s employment policies and practices in light of changes in our society and in the laws that apply to employers. Stay informed using reliable resources from ACA, the Equal Employment Opportunity Commission, or from your employment practices attorney, employment practices insurer, and other sources you may identify.

Pursue a strategy that constantly improves and updates your employment practices. You’ll increase the likelihood of finding and keeping good people while building your reputation and your business. Good luck along the trail!

ACA Resources
ACA has many resources to help with fair employment practices at camp, including:
  • “Transgender Staff and Anti-discrimination,” by Nick Teich, LCSW: ACAcamps.org/resource-library/articles/transgender-staff-anti-dicriminaton
  • “Individuals Who Identify as Gender Non-Conforming,” CampLine: ACAcamps.org/resource-library/campline/individuals-who-identify-gender-non-conforming
  • Effective Human Resources and Employment Practices (webinar): ACAcamps
  • .org/staff-professionals/events-professional-development/recorded-webinar/effective-human-resource-employment-practices
Additional valuable information is available from the Equal Employment Opportunity Commission website: Visit eeoc.gov.

Edward A. Schirick, CPCU, CIC, CRM, is area senior vice of RPS Bollinger Sports & Leisure in Monticello, New York, where he specializes in arranging insurance coverage and offering risk management advice for camps. Ed is a chartered property casualty underwriter, a certified insurance counselor, and a certified risk manager. He can be reached at 877.794.3113 or Ed_Schirick@RPSins.com. Visit campinsurancepro.com.