No one wants to be thought of as a “Scrooge,” so even if you, as an employer, have had a bad experience in the past, it is doubtful you would ever decide to ban the holiday office party. However, that doesn’t mean you can’t be prepared this time to deal with an out of control employee.
Intoxicated hijinks can lead to partygoers crossing the line – from simply offending others to actually breaking the law. And don’t forget that, these days, drunken shenanigans at a holiday party can quickly be posted online for the whole world to see.
Reminding employees that respect and professionalism apply not only on work time but also at company- sponsored events like office parties, and establishing social media policies that prohibit employees from posting photographs or video without management permission are good initial steps, but far more needs to be done to deal with more serious legal issues.
As stated in an article on thebalance.com, employees are protected from sexual harassment and discrimination by Title VII of the Civil Rights Act of 1964, which covers employers having 15 or more employees (including regular part-time ones). Title VII provides two requirements for conduct to trigger potential liability for unlawful harassment:
- The conduct must be unwelcome; and
- The conduct must be sufficiently severe or pervasive.
It need not be both. Conduct is not illegal simply because it is inappropriate or makes someone feel uncomfortable.
However, even a single, extremely serious incident of harassment may be sufficient to constitute a Title VII violation, especially if the harassment is physical.
So, if an office party incident follows previous incidents of misconduct, it could constitute the evidence necessary to reach the “severe” or “pervasive” threshold, laying the foundation for a Title VII claim.
A second major legal liability is created by drunk driving following an employer-sponsored holiday party. In a 2013 decision that received substantial publicity, a California appellate court reversed the trial court’s grant of summary judgment for the employer and found that an employee who consumed alcohol at a company-sponsored event, and then later struck another car and killed the driver, created liability for the employer.
“It is irrelevant that foreseeable effects of the employee's negligent conduct (here, the car accident) occurred at a time the employee was no longer acting within the scope of his or her employment,” the court ruled.
Proactive Steps to Consider
Given such legal risks, prudent employers should take proactive steps to lessen their litigation liability. Key examples to consider include:
- Have in place comprehensive, written anti-harassment policies, clearly stated in employee handbooks – and publicize that policy prior to the holiday party.
- Send a memo reminding employees to act responsibly at the party, clearly expressing a lack of tolerance for inappropriate behavior.
- Enforce the workplace dress code at the party to avoid any inappropriate or suggestive attire.
- Make attendance at the party voluntary, and do not suggest that attendance will benefit a person’s standing within the company.
- If alcohol is served, set a tone of moderation in advance through interoffice memos, emails, meetings, inserts into paychecks or other communications, and stress that excessive alcohol consumption will not be tolerated.
- Limit the number of drinks or the length of time during which alcohol will be served, and provide substantial non-alcoholic alternatives.
Such steps are not a guarantee against holiday party problems, particularly if the decision is made to serve alcohol. But they can be an employer’s foundation for an effective defense against liability if problems happen.