Holiday Parties: Mistletoe, Sex Harassment, and Working Under the Influence

By I. Jeffrey Pheterson, Managing Partner

‘Tis the season to be jolly. It’s also the season for office holiday parties which means it’s typically the one time of the year that staff of all ages and all genders gets to mix alcohol in a non-work, fun setting. From an employer’s perspective, this can be a recipe for a myriad of problems.

First, the employer supplying the alcohol faces some concerns. Whether you offer an open bar, or require employees to buy their drinks, the effects on the blood alcohol of your employees are the same. These may involve life safety issues, so they come first. If an employer has a holiday party with alcohol, a seasoned bartender at the bar is well worth the cost involved. From a risk management perspective, drunk driving is the principal evil to be avoided. There is no need to elaborate. An “open” untended bar, with bottles of liquor and wine and unmonitored coolers full of beer can be a problem. A bartender can say no to someone who has had one too many, with no repercussions next week back at work. When a manager says no, she or he may be affecting a workplace relationship for years to come. Leave it to the pros.

Second, alcohol affects inhibitions. The more one drinks, the lower they drop. If not moderated by a professional bartender, unwelcome sexual advances become more frequent. Sexual harassment charges often spike in January, with fact patterns arising from holiday parties being central.

Both alcohol use and potential harassment generally are dealt with in employee manuals. An employer may be able to defend itself, if it has made sure it has fulfilled its duty to exercise reasonable care in the circumstances.

The first prong of an employer’s affirmative defense to harassment requires a showing by the employer that it undertook reasonable care to prevent and promptly correct harassment. Such reasonable care generally requires an employer to establish, disseminate, and enforce an anti-harassment policy and complaint procedure, and to take other reasonable steps to prevent and correct harassment. Before the party, send an email reiterating the policy. Even if done in a short email, in the spirit of letting everyone know that the employer wants everyone to have a good time and that it should not be spoiled by violations of the policy. A reminder like this cannot hurt. It shows the employer’s resolve that it wants everyone to have a good time, while exercising reasonable care.

The EEOC notes in its Enforcement Guidance Policies that small employers may be able to effectively prevent and correct harassment through informal means, while larger employers may have to institute more formal mechanisms. A short reminder may suffice in the email notifying people of the date and time. (For example: We are all at the party to break bread together and to share the blessings of the season, so please remember to honor our normal standards of good conduct.)

With that simple email reminder, along with a professional bartender at the event, you may have managed 80 percent of the risk.  Then, be present, be aware and be prepared to step in if needed. But also, enjoy yourself. It’s a holiday party.

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