The time for the annual office holiday party is fast approaching. As it does employers should be aware of some of the issues that can turn what should be a festive occasion into a nightmare. While allowing employees to deck the halls and trim the tree, employers also need to set ground rules for their employees and others attending holiday parties.
The issues that may arise for employers at holiday parties are varied. They can include charges of sexual harassment lodged against an employee or other attendee who may have had too much to drink; potential liability for the employer if that same intoxicated employee later causes an accident while driving home; and charges of religious discrimination by employees who feel compelled to attend an event that might have religious undertones which they do not share.
Such concerns are not abstract but real. Employers have been sued and/or have received bad publicity in the media for such issues attributable to holiday parties. Being aware of some of the many issues that may arise and following a few guidelines, can help minimize potential liability for an employer.
Implement Policies to Limit Sexual Harassment and Other Inappropriate Behavior
Harassment, particularly of a sexual nature, is all too common a legal problem at holiday parties. Such harassment can take the form of offensive comments, inappropriate touching or worse. The harassment may be the result of an employee or other attendee drinking too much. It may also arise, however, from employees blowing off steam with co-workers in a more relaxed atmosphere than the employee’s office or cubicle.
Offensive touching and words may not be the only cause for concern. Naughty gifts may also lead to trouble. Employers should advise employees who participate in gift exchanges that gifts should be respectful and appropriate for the workplace. Thus, employees should refrain from exchanging CDs or books containing graphic lyrics or content, or holiday cards of an adult nature. While one person may find such gifts humorous, another employee may take offense, particularly if the gift is presented in front of a room full of co-workers and strangers.
In this day and age, every employer to which federal and/or state antidiscrimination laws apply should have a policy advising employees that unlawful harassment, including sexual harassment, will not be tolerated at the workplace. Employers should also make clear that this policy extends to such functions as the holiday party.
Eat, DRINK and Be Merry-Not So Fast
Many employers serve or allow alcohol to be served at holiday parties. While there is nothing generally wrong with allowing adult employees to drink at the holiday party, alcohol may result in an employee engaging in offensive behavior during the party, cause the employee to hurt him or herself at the party, or worse, result in the employee causing an accident while driving home from the party.
Any of the aforementioned events is cause for concern and may result in liability for an employer. As for the third concern specifically, tort damages may be substantial where an injured person sues an employer after one of its employees gets behind the wheel, intoxicated, after attending an office holiday party. Accordingly, an employer who allows an employee to leave the holiday party drunk does so at its peril.
At a minimum, an employer should take some precautions to minimize the possibility that an employee might leave an office party impaired and hurt him/herself or others.
Some steps include:
- advising employees to drink responsibly and to plan for their transportation home in advance if they intend to drink;
- implementing a designated driver program;
- offering to front employees’ cab fare or the option to stay in a nearby hotel if they cannot drive;
- asking certain managers or others to volunteer not to drink and to monitor the event to determine whether anyone may be drinking excessively and may need to take advantage of a designated driver, cab ride or another non-driving option;
- giving employees a limited number of drink tickets;
- advising bartenders not to over-pour drinks and not to serve guests who appear intoxicated or rowdy;
- serving food to slow the absorption of alcohol as well as offering plenty of non-alcoholic drinks;
- implementing policies to ensure that any minors who may attend the party are not served alcohol; and
- closing the bar at least an hour or more before the event ends.
Title VII protects against religious discrimination. Such discrimination may occur if an employer makes a “Christmas” party mandatory when not all employees celebrate Christmas. In EEOC v. Norwegian Am. Hosp., a case filed in federal court in Illinois, for instance, a Muslim employee successfully sued her employer after, among other things, she was disciplined for failing to participate in Christmas activities.
In today’s increasingly diverse workforce, a prudent employer should strive to be inclusive. One way to do so is to keep the holiday theme generic. For instance, employers should consider calling the “Christmas Party” the “Holiday Party.” Renaming the event in this manner makes it more inclusive for religious minorities who may not celebrate Christmas. Employees may also feel more included if employers are considerate of dietary or drinking restrictions. Employers should offer non-alcoholic beverages for those who may not drink because their religion forbids it. Also, employers may consider including vegetarian food selections and kosher foods on the menu. A short generic e-mail message to employees asking for menu suggestions or asking about dietary restrictions may serve to make the festivities more inclusive and help alleviate charges of religious discrimination. Finally, even with such accommodations, some employees may still be uncomfortable attending a holiday party for religious reasons. Thus, the party should be voluntary.
There is no one-size-fits-all for every employer in terms of planning for the holiday party. However, keeping some of these points in mind as you plan your holiday party may prevent the festivities from turning into a legal nightmare.
REFERENCE: Holiday Parties: Keeping It Fun For Employees While Minimizing Employer Liability By: Jerald J. Oppel http://www.ober.com/publications/605-holiday-parties-keeping-it-fun-employees-while-minimizing-employer-liability