Whether you’re ready or not, it’s almost time to deck the halls and pull out the punch bowl for your office holiday party. But before you start dusting off your religiously neutral décor, make sure you take steps to limit the potential legal liability of company-sponsored holiday merrymaking. Even “[a]t the risk of playing the Grinch” courts like the Seventh Circuit Court of Appeals recognize “that office Christmas parties also seem to be fertile ground for unwanted sexual overtures that lead to Title VII complaints.” Place v. Abbott Laboratories, 215 F.3d 803, 805 n.1 (7th Cir. 2000). But the holiday season does not have to mean an influx of legal liability! Consider the following tips to potentially reduce your company’s exposure and make the season a little more joyful for everyone.
Holiday Parties
You want your office holiday parties to be talked about for years to come because they were fun, not because employees are being asked about them in depositions. You may want to consider the following holiday party best practices to potentially protect employers and their employees from expensive holiday mishaps:
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At the outset of party-planning, consider checking with your insurance carrier to see exactly what is covered under your policy. Some general liability policies do not cover holiday parties. Also, some general liability policies have an alcohol exclusion, so be sure to determine whether your policy includes such an exclusion before you buy the booze.
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If alcohol is served, keep consumption in check. Consider limiting access to alcohol by placing restrictions on the type served, the time available (as in closing the bar well before the party ends) or the number of drinks served (through drink tickets). Providing food is also a good idea, as it typically slows the absorption of alcohol into the bloodstream and still keeps guests in great spirits. Make sure you also consider providing plenty of non-alcoholic beverages for people to sip.
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Consider inviting spouses, significant others, families, and important clients or customers. When families, clients and others are present, the atmosphere of a company party usually commits employees to good behavior. If you invite clients or customers to the party, however, remember that employers can be liable for harassment perpetrated by third parties or on third parties.
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If alcohol is still on the menu, consider hiring professional bartenders that require identification as required by the state you are in. Some states require identification of all who choose to consume alcohol, regardless of how old they look. Additionally, ask the bartenders to keep their eyes open for obviously intoxicated employees. Assigning designated employees to remain sober and monitor the intoxication of other employees can be both a deterrent to excessive drinking and a safeguard against liability in the event that someone overindulges.
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Consider arranging for designated drivers, cabs or ride-share services to ensure that all persons have a safe way to get home. Employers can also offer incentives to employees to be designated drivers and/or reimburse employees for cabs or other types of paid rides home.
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When you are advertising or decorating for your party, consider using non-religious terms or symbols. For example, call it a “holiday party” or “annual celebration,” using winter-themed decorations.
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If you choose to play holiday music, consider using non-religious songs. Big-band classics from the ‘40s are also a great way to keep the mood fun without excluding anyone.
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Consider communicating to your employees that attendance at the holiday party is absolutely voluntary. The holiday party is generally not the venue to distribute bonuses or conduct any other business. If your holiday party is held during regular work hours, then you should consider whether you need to pay your non-exempt employees for the time they spend at the party.
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Consider the impact that the time and place of the party will have on employees’ behavior. A daytime event is far less likely to result in excessive drinking, or otherwise inappropriate behavior. An event on a weekday, when employees know they have to work the next day, is also likely to be better behaved than one on a Saturday night. And as far as location goes, if alcohol is being served at the party the employer may be better off hosting the event offsite to shift liability that may be incurred via dramshop or other laws.
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Even if your holiday party is off-site, employers have a legal duty to prevent harassment just like they do in the office. Therefore, think about publishing or re-publishing the company’s sexual harassment policy before holiday parties take place, and reminding employees that holiday festivities are no excuse to violate the sexual harassment policy. If a company has no written policy, or if you have not yet required your employees to attend harassment training this year, this would be a good time to take action.
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Most importantly, if there is a problem, deal with it promptly! Every act of sexual harassment, whether by a co-worker, supervisor, client or third party, should be taken seriously. Prompt action designed to stop any further harassment not only demonstrates that the employer does not condone such behavior, but may prevent certain behavior from being imputed to the employer. Employers with a record of consistent and effective responses to incidents often receive more favorable outcomes and can pay less for insurance.
Holiday Decorations
As with all seasons, the employer must treat persons of all religions equally. This principle applies to holiday decorations as well. If an employer limits the extent that religious decorations are displayed in the workplace, the limitation must be uniformly applied to all individuals and their respective religions. For an example, if an employee is not allowed to construct a nativity scene in her office, another employee should not be allowed to display even discrete Ramadan decorations.
Many employers prefer to decorate the office with non-religious decorations, such as winter/snow scenes, nature motifs and strings of lights. Some employers try to be religiously neutral by including a little bit of every religious decoration. This technique ignores the fact that many people are not religious at all and rarely equally highlights every religion.
Though it is important to be as neutral as possible, there are some decorations that may be distantly associated with religions that are still suitable for the workplace. The U.S. Equal Employment Opportunity Commission has acknowledged the U.S. Supreme Court’s determination that wreaths and Christmas trees are considered “secular” symbols in the context of the First Amendment. Therefore, employers may hang otherwise non-religious wreaths around the office or have a tree in the building lobby, even if an employee objects to such decorations. Yet, the best practice is to be sensitive to the diversity of the workplace and to keep the channels of communication open for employees’ complaints to be meaningfully heard.
Holiday Gift Exchanges
If employees participate in holiday gift exchanges, employers may consider making it clear that the exchange is optional and that gifts must be respectful and appropriate for the workplace. For example, gifts should not be sexual or otherwise of a lewd nature, nor should they be overtly religious. Employees are, of course, free to give each other gifts outside the office, but employers should consider screening gifts that are given through any company-sponsored exchange are opened by the recipient.
Conclusion
Though it can be a lot of work to prepare your company for the holidays, it will absolutely be worth it when you are ringing in the New Year without complaints or lawsuits. When the only thing your employees regret is how much holiday food they ate, your company will be on track to have successful holiday parties for decades to come.
