Who Responds When a Nonprofit Board Member Breaks Title VII or the ADA?
The nonprofit responds, and the nonprofit is liable. A volunteer board member isn't an employee, but Title VII and the ADA define the "employer" to include its agents, and the board is the organization's governing body. When a board member harasses staff, makes a discriminatory decision or mishandles medical information, the charge names the nonprofit.
The hard part is that the person who broke the law may hold the most power in the organization. Board members control the executive director's job, the budget and donor relationships, and many have never been trained on employment law. Only the board can rein in a board member, and boards are often reluctant to confront one of their own.
Key Takeaways
- A board member doesn't have to be an employee to create liability. The nonprofit answers for unlawful conduct by its board and officers.
- The board member may be personally liable too, under 42 U.S.C. § 1981 and some state laws.
- Power weakens your defenses. Harassment by a board chair or president can make the nonprofit automatically liable.
- The executive director can't fix it. Only the board can restrict, discipline or remove a director.
- Deadlines are shorter. Some EEOC offices now give 15 days, not 30, for a position statement.
- Board boundaries training prevents most of this. Directors need to know where governance ends and staff management begins.
What Does Unlawful Conduct by a Nonprofit Board Member Look Like?
Most board members who break employment laws don't think they're doing anything wrong. They treat staff like personal assistants or assume the rules for "management" don't apply to volunteers.
Title VII violations often include:
Sexual harassment of staff, often at galas, fundraisers and board dinners where alcohol is served
"Jokes" or comments about race, religion, national origin, sex or sexual orientation
Questioning whether a pregnant executive director can "handle" the job
Voting to remove the ED, or pressuring the ED to fire staff, for discriminatory reasons
ADA violations often include:
Asking an employee about a diagnosis, medication or mental health condition, which the ADA limits to job-related questions consistent with business necessity (42 U.S.C. § 12112(d)(4))
Discussing an employee's medical condition or leave at a board meeting, in minutes or with donors
Overriding a reasonable accommodation or insisting an employee on leave be replaced
Retaliation is the most predictable problem. After an employee complains, a power-hungry board member may demand their termination, cut their budget or lobby the ED to "manage them out."
Why Are Board Members So Hard to Rein In?
- The executive director reports to the boardThe ED can't discipline the people who can fire them.
- Staff have nowhere safe to reportPolicies often route complaints to the ED or the board, which may mean reporting to the harasser or their colleagues.
- Boards protect their ownEspecially founders, friends and major donors.
- Many directors have never been trainedSome volunteer board members have never been taught the basics of Title VII or the ADA.
Can a Nonprofit Board Member Be Personally Liable for Harassment or Discrimination?
Yes, under some laws. The EEOC charge names the nonprofit, and Title VII and the ADA don't impose personal liability. But a board member can be sued individually under federal civil rights law and many state laws.
Section 1981. 42 U.S.C. § 1981 prohibits race and ethnicity discrimination in employment, and courts generally allow claims against individuals who were personally involved. It applies to nonprofits of any size, requires no EEOC charge, has no damages caps and usually has a four-year filing deadline under Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004). It also covers retaliation under CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008).
State laws. California makes individual harassers personally liable (Cal. Gov. Code § 12940(j)(3)). New York (N.Y. Exec. Law § 296(6)), New Jersey (N.J.S.A. 10:5-12(e)) and Massachusetts (M.G.L. c. 151B, § 4(5)) prohibit aiding and abetting discrimination, which can reach individual directors.
The federal Volunteer Protection Act doesn't shield civil rights violations, and indemnification for intentional misconduct is often limited. A board member facing personal exposure may need separate counsel.
Why Is a Nonprofit Liable for a Board Member Who Isn't an Employee?
Title VII defines an "employer" to include "any agent" (42 U.S.C. § 2000e(b)), and the ADA does the same (42 U.S.C. § 12111(5)(A)). When the board acts, the nonprofit acts. For harassment, liability depends on the board member's authority:
| Board member's role | Nonprofit liability standard |
|---|---|
| Board chair, president or officer acting as the organization's proxy | Automatic liability |
| Board member who supervises the employee (often the ED) | Liable unless the nonprofit proves the Faragher/Ellerth defense; automatic if a tangible action resulted |
| Board member with no authority over the employee | Liable if the nonprofit knew or should have known and didn't act promptly (29 C.F.R. § 1604.11(e)) |
The EEOC explains these standards in its Enforcement Guidance on Harassment in the Workplace. Title VII and the ADA apply to employers with 15 or more employees, and volunteer directors generally don't count toward that number. Smaller nonprofits may still be covered by state law or Section 1981.
What Respondeat Superior Defenses Can a Nonprofit Raise?
A nonprofit has real defenses to vicarious liability, but many fail when the board itself is the problem.
Is Harassment Outside the Scope of a Board Member's Role?
Harassment is rarely within anyone's duties, but in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) the Supreme Court held employers can still be liable when the harasser's position helped them do it. A board member's power over staff is exactly that kind of help. The scope defense works better against common-law claims like assault, though negligent retention claims remain if the board knew and did nothing.
Can a Nonprofit Use the Faragher/Ellerth Defense?
Sometimes. Under Faragher and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the nonprofit avoids liability for supervisor harassment if it took reasonable care to prevent and correct harassment and the employee unreasonably failed to complain. The defense is unavailable when:
The harassment led to a tangible action, such as termination or demotion
The harasser is a top officer acting as the organization's proxy
The full board made the decision
It also fails when the complaint policy sends staff to the board, because reporting to the harasser's colleagues isn't a reasonable option.
What Is Cat's Paw Liability for Nonprofit Boards?
Under Staub v. Proctor Hospital, 562 U.S. 411 (2011), an employer can be liable when a biased person's influence causes a decision someone else makes. If a board member pressures the ED to fire someone who complained, the ED's sign-off may not protect the nonprofit.
Can a Nonprofit Avoid Punitive Damages?
Possibly. Under Kolstad v. American Dental Association, 527 U.S. 526 (1999), an employer may avoid punitive damages for a managerial agent's discrimination that goes against its good-faith compliance efforts. Real policies, training and enforcement, including board training, build that record.
Who Should Manage a Nonprofit's Response to an EEOC Charge?
A small group with no personal stake in the outcome:
| Role | Responsibility |
|---|---|
| Board chair or special committee | Oversees the response and settlement authority; can't lead if they're the accused or close to them |
| Employment counsel | Drafts the position statement and represents the nonprofit, not the individual director |
| Executive director or HR | Gathers documents and protects the complainant; may be conflicted if the ED is the complainant or a witness |
| EPLI or D&O insurer | Must get prompt notice; may appoint counsel and fund settlement |
| Accused board member | Cooperates as a witness only; doesn't direct the response or contact the complainant |
If the executive director is the complainant, the committee should work directly with outside counsel and an outside HR resource such as an Outsourced CHRO.
What Should a Nonprofit Do After Receiving an EEOC Charge? 7 Steps
Calendar the deadline. Check the due date in the EEOC Respondent Portal. Some offices now give 15 days instead of 30, and extensions are hard to get.
Notify your EPLI and D&O carriers in writing right away.
Engage employment counsel to handle the EEOC and preserve privilege.
Recuse the accused board member from every decision about the charge and the complainant, and note the recusal in the minutes.
Issue a litigation hold covering board members' personal email and texts, not just organizational accounts.
Investigate independently if no investigation has been done. See how to investigate a harassment complaint.
Submit a factual, documented position statement. The EEOC warns that a bare denial isn't enough (effective position statements), and the charging party can read it.
How Do You Stop a Nonprofit Board Member Who Harasses or Discriminates?
You can't fire a volunteer director, but the board can restrict, discipline and remove one. The board has to do it, not the executive director.
While you investigate, direct the board member in writing to have no contact with the complainant, route their staff communication through the chair, and suspend them from staff-facing roles or committees. Document each step.
After the investigation, options include a written warning or censure, removal from officer roles, required training, a request for resignation or formal removal.
How Do You Remove a Nonprofit Board Member?
Removal follows the bylaws and state nonprofit corporation law. Some bylaws require cause, notice, a supermajority or a member vote. Follow the process exactly and have counsel review it first.
What If the Board Won't Act Against One of Its Own?
That's the most dangerous scenario. Liability grows, the ED is left exposed and silent directors may face questions about their duty of care. An outside HR advisor or counsel can lay out the risk to the full board.
How Does a Nonprofit Avoid Retaliation After a Charge?
Treat the complainant exactly as you would have if no charge had been filed, and involve counsel before any adverse action. Read more about workplace retaliation for employers.
Why Should Nonprofits Train Board Members on Boundaries With Staff?
Board boundaries training is the best way to prevent these charges. Many directors have never been told where governance ends and staff management begins. Training should cover:
- Governance vs. management: the board oversees the ED and doesn't direct other staff
- Communication: route requests through the ED and avoid after-hours personal texting
- Harassment, discrimination and retaliation basics, including that unpaid directors can create liability
- Events and alcohol at galas and fundraisers
- Medical confidentiality and what not to ask staff
- What to do with a staff complaint: route it to the designated officer or counsel, never investigate alone
Back the training with an anti-harassment policy that explicitly covers board members, a reporting path that bypasses the board, and an annual signed acknowledgment. Learn about leadership training built for this.
How Can an Outsourced CHRO Help a Nonprofit Board?
CHRO, LLC is an attorney-led fractional HR firm that helps nonprofit boards manage charges independently, arrange investigations, protect complainants, train directors on boundaries and update board policies. Learn more about our Outsourced CHRO services and employee relations support, or schedule a confidential consultation.
Frequently Asked Questions About Nonprofit Board Member Harassment and Discrimination
Is a nonprofit liable for a board member who isn't an employee?
Yes. Title VII and the ADA define the employer to include its agents, and the board is the nonprofit's governing body. When a board member harasses staff, makes a discriminatory decision or mishandles medical information, the nonprofit is responsible. If the board member is a top officer acting as the organization's proxy, liability for harassment can be automatic.
Can a nonprofit board member be personally liable?
Yes, under some laws. Title VII and the ADA don't impose personal liability, but 42 U.S.C. § 1981 allows race discrimination and retaliation claims against individuals who were personally involved. Several states, including California, New York, New Jersey and Massachusetts, also allow claims against individual harassers or people who aid and abet discrimination.
Who responds to an EEOC charge involving a board member?
The nonprofit, because the charge names the employer. The board chair or a committee of disinterested directors should manage the response with employment counsel and the insurer. The accused board member should cooperate as a witness but not direct or approve the response.
Can a board member ask an employee about a medical condition?
Generally, no. The ADA limits disability-related questions to those that are job-related and consistent with business necessity, and they should come from HR or the ED, not a board member. Any medical information the board learns must stay confidential and out of board minutes.
Can the executive director discipline a board member?
No. The ED reports to the board and has no authority over individual directors. Discipline, restrictions and removal must come from the board itself, through its chair, a committee or the bylaws.
Does EPLI cover a board member's harassment or discrimination?
Often. Nonprofit EPLI and D&O policies usually treat directors as insured persons and cover employee claims, including EEOC charges. Coverage can be contested if the conduct was outside the director's role, involved assault or falls under a sexual misconduct exclusion. Notify the carrier as soon as the charge arrives.
Bottom Line
A volunteer board member can expose your nonprofit to Title VII and ADA liability, and themselves to personal liability under Section 1981 and some state laws. When it happens, the board has to act: meet the EEOC deadline, notify your insurer, sideline the director and protect the complainant. Then train your board so it doesn't happen again. Take the Workplace Diagnostic or schedule a consultation with CHRO, LLC.
About CHRO, LLC
CHRO, LLC is an attorney-led fractional HR firm that helps nonprofit boards handle the hardest people problems, including when the problem is a board member. As your Outsourced CHRO, we help boards manage EEOC charges independently of conflicted directors, arrange workplace investigations, protect complainants from retaliation, and provide employee relations and HR compliance support. We also deliver board boundaries training and update anti-harassment policies, reporting paths and board codes of conduct so your directors know where governance ends and staff management begins.
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