Every year, my firm receives multiple phone calls from people who have been the victim of some form of harassment or discrimination at company-sponsored holiday parties. Once again, the holiday season is upon us and we hope that, if everyone thinks ahead, many of the potential pitfalls can be averted so that everyone can enjoy the parties.
End-of-year holiday parties have a particular potential for sexual, religious, and other forms of harassment because a number of unique factors are at play at these types of functions. First, holiday parties often take place at a location away from the worksite. This factor alone can lead to the relaxing of the behaviors people tend to understand as “workplace appropriate.” The fact that people are interacting in much more social environment than usual also adds to the tendency for people to stray from workplace norms, a tendency often exacerbated by the often accepted use of alcohol at these events. This combination can be recipe for bad things to happen.
It is important to remember that, in addition to any individual offending employees, employers can also be held liable (1) if they have failed to take steps to prevent discrimination and harassment, (2) if they know or should know about the conduct and fail to promptly and sufficiently put a stop to the conduct, or (3) if when the harassment is done by an owner, officer, director, manager or supervisor. In addition to continuing to follow all ordinary legal requirements to inform and train employees regarding their rights and responsibilities regarding improper discrimination and harassment, employers seeking to avoid liability for victims’ potential economic losses, emotional recovery, and even punitive damages should be especially mindful to ensure professional boundaries are maintained throughout holiday festivities.
The good news is that there are many steps employers can take to minimize the dangers of harassment. Invitations and announcements for work-sponsored holiday events, for example, can and should provide explicit guidance that all harassment and discrimination policies in place at work are applicable to holiday parties as well. Supervisors can remind staff that although co-workers will be interacting socially, they must treat each other with the respect they do in the workplace and set clear guidelines for what is expected. Archaic traditions, such as kissing under the mistletoe, that serve to legitimize and trivialize sexual harassment need to be left in the past.
If the employer is hosting the bar, a limitation on the number of drinks can keep people from overindulging. No good has ever come from a person overdrinking at a holiday party. Another crucial step to mitigate potential problems can be making sure, in advance, that everyone has a safe way to get home from holiday parties. This simple proactive gesture might save an employee from getting a DUI and, equally important, ensure that an intoxicated worker is not harrassed or coerced to accept a ride home from someone with ill intent.
Another area of concern at holiday parties can be religious discrimination and harassment. Not everyone celebrates Christmas. People of other faiths should not feel pressure to participate in a religious-based holiday, or to have to explain why they choose not to. Most religions have a mid-winter holiday, so holding ecumenical festivities can be a way of respecting all employees’ cultural traditions while celebrating the end of the year together.
Finally, if the employer hosts a gift exchange or “secret santa” game at the holiday party, a clear understanding of what types of gifts are acceptable is imperative. Sexualized gifts may seem funny to some, but can be offensive and traumatic to others given their particular history of sexual harassment or abuse. Non-sexual joke gifts, too, can cross the line into illegal harassment. Just last year, my office proudly represented an African-American woman who was singled out to receive a particular gift at the holiday party: a purse with a confederate flag containing pictures of the employer dressed as President Trump with a sign indicated the south would “rise again.” Employers should take responsibility for ensuring that all holiday gifts are given in good will and with the same respect and sensitivity expected in the workplace.
When employers make expectations clear and plan ahead for the well-being of all their employees, it allows everyone to safely celebrate winter festivities together and ring in a new year of successful employee relations. Each employee can also help. Make sure you have a plan to get safely home. Don’t encourage overindulgence in alcohol. Think about how the gift you are giving may be received. Act with dignity and respect toward your co-workers.
Enjoy the party. Hopefully, this year Dolan Law Firm will not receive one of those unfortunate calls.
