by Renee Mielnicki, Esq.
It’s that time of the year again! Most employers want to sponsor holiday parties for their employees to celebrate the season and reward employees for their hard work during the year. Before throwing that annual Christmas bash, employers should understand their legal exposures in these types of situations.
Sexual harassment continues to be one of the most frequently filed discrimination lawsuits. Claims are on the rise as the result of conduct that occurs at employer sponsored holiday parties. Employees may be feeling especially merry at these parties because they may have had one too many cups of holiday cheer. In addition, their inhibitions may be much more relaxed than they would normally be in the office.
Conduct of a sexual nature, whether by words or action, must be severe or pervasive to be actionable. Usually, one incident, alone, at a holiday party cannot give rise to a sexual harassment lawsuit. But, if coupled with other similar conduct in the workplace, that one comment can lead to expensive litigation for an employer. Take for example a co-worker at the holiday party who makes a sexual comment to a co-employee. While not actionable by itself, if other factors exist in the workplace that create a hostile work environment, that comment can become part of his or her lawsuit.
However, some situations at a holiday party that are a one-time incident can give rise to a sexual harassment claim. Conduct that is serious in nature, such as a sexual assault, or an offensive touching, could impose liability, especially if the accused is a supervisor since employers have strict liability for their discriminatory or harassing conduct.
Another holiday activity that poses a legal risk in the workplace is the exchange of holiday gifts, whether in the office or at a holiday party. Employees who think holiday cards containing adult content or naughty gifts are humorous may not find it so funny to know that they can create a hostile work environment for those who do not find is so comical.
Religious discrimination is another potential liability for employers wanting to throw a Christmas party. While Christianity remains the majority religion in the United States and most celebrate Christmas, failing to keep it secular could give rise to these types of claims. Many minorities do not celebrate Christmas or their religion may forbid them from participating in certain types of celebrations.
In order to avoid these types of risks during the holidays, employers should consider the following 10 tips:
1. Consider having a lunch or breakfast gathering to celebrate the holidays where no alcohol will be served;
2. If you do have a party after work hours, invite employee spouses to reduce the risk to “indulge”;
3. Limit the number of alcohol drinks that can be served;
4. Designate a few employees in management to remain sober and to be on the watch for inappropriate behavior;
5. Redistribute your sexual harassment policy prior to the party and emphasize to employees that it applies at all social events and the holiday party;
6. Consider implementing a social event/holiday party sexual harassment policy in supplement to your already existing sexual harassment policy;
7. Make attendance voluntary since not all people celebrate the holidays. Moreover, mandatory attendance can lead to wage and hour issues;
8. Make sure no employer references are made to the workplace at the party. For instance, no awards or recognitions;
9. Keep the theme secular. Rename it the “Holiday Party” as opposed to the “Christmas Party” to be inclusive and secular;
10. Instead of a Christmas or holiday gift exchange, encourage employees to participate in a cookie exchange.
Following these 10 tips during the holiday season can help keep the season festive without creating legal landmines that are expensive.