Holiday Parties Should Be Festive!

But you should forget the mistletoe & skip the inappropriate gag gifts. . .

Holiday parties offer a chance for employees to interact with one another in a more casual atmosphere outside of the office, away from the stressors of work.  They can also build morale.  If, however, employees become too “casual” at the party, you as an employer might face unwanted legal trouble.  Consider the following scenarios from lawsuits filed in courts across the country:

• Topless mermaids used as table decorations.
• A male employee insists on a kiss from a female employee under the mistletoe.
• Two employees dance (consensually – they were a couple) in suggestive ways at a holiday party, offending other employees who could see them.
• A male employee makes comments about a female employee’s looks, makes lewd sexual comments, and tells her she could make more money working at Hooters.
• Male employees take pictures of two female employees kissing, one of whom told coworkers she was not wearing underwear.  One male employee later shows the picture to other coworkers.
• A male employee calls a female assistant a “hot little one” and warns another coworker she better watch her husband around the female assistant.
• After a female employee filed a sexual harassment complaint against a co-worker and he was terminated, his co-workers take his side at a holiday party and even collect money for him, in view of the female employee who made the complaint.

These scenarios are offered partly for amusement, but also as examples of situations to prevent, or to immediately stop if they happen at your holiday party.  Many of the examples provided above are “no-brainers,” and conversely, some might seem bland.  But all of them can potentially lead to internal complaints, EEOC charges, or lawsuits, especially if the conduct is combined with a pattern of other bad actions from the same employee before or after the party (which will generally exist in these situations).

Also consider that lawsuits have been filed against employers for events that occur after a holiday party or outside a holiday party.  For example, if coworkers get intoxicated at the holiday party, and afterward go to another bar and drink more, inappropriate actions can occur that lead to sexual harassment complaints.  Or, if an employee makes sexual advances against another employee in a room in the same hotel where the holiday party is held, that can result in sexual harassment complaints.

Aside from the risk of sexual harassment complaints, employers must recognize the risks associated with “overserving” alcohol at holiday parties, such as automobile accidents caused by intoxicated employees driving home.  One shocking California appellate case held an employer may be liable for a death caused by its intoxicated employee that occurred after the employee had returned home, and then left his home to pick up a co-worker and drive the co-worker home.  (Purton v. Marriott International, Inc. (2013) 218 Cal.App.4th 499.) The employer was potentially on the hook because it started the “chain of events” that led to the death.  The case ultimately did not go to trial after this appellate ruling, and might have resulted in a costly confidential settlement.

Below are steps employers should consider taking in order to prevent trouble at their holiday party:

• Remind employees that the company sexual harassment policy applies during the holiday party.
• Consider also enforcing the company dress code, or at least strongly discouraging inappropriate or “revealing” clothing at the holiday party.
• Make the party voluntary.
• Monitor employees’ alcohol consumption.
• Arrange for alternate transportation for employees to get home (and consider paying for it).
• Have one or more people who are not drinking responsible for handling employees who start to behave inappropriately.
• Keep guests busy with (appropriate) activities other than drinking.
• Have a set ending time for the party, and close the bar well before the ending time.
• Forget the mistletoe.  Also skip the inappropriate gag gifts and inappropriate party games.

Holiday parties should be festive, not a source of worry for companies.  It is rare for employees to engage in the bad acts described above, but it does happen.  A few simple steps can greatly reduce the chance of such trouble happening at your party and save your business money in the long run.

By:  Brian E. Ewing, Esq.