Fall 2010Another holiday season is just around the corner, but this one may bring diminished cheer, due to the challenges of a troubled economy. The recession has caused layoffs, furloughs, wage freezes, and related cost-saving measures. As a result, employment-related lawsuits have increased dramatically. Unfortunately, holiday celebrations provide special fodder for employment-related litigation, and employers should plan to exercise extreme caution.
Any gathering of employees may create an opportunity for accusations of harassment, especially when alcohol is involved, as it often is during the holidays. This is also a time of increased stress, when employees are concerned about their financial situations as well as the possibility of job loss as a result of budget cuts.
To minimize the possibility of employment-related lawsuits arising out of holiday parties, every employer should have in place a written harassment policy that specifically states what conduct (verbal, visual, or physical) can constitute impermissible harassment. The policy should contain examples of prohibited conduct, the legal definition of harassment, the names or titles of those to whom concerns should be reported, and a strict prohibition against retaliation for reporting a complaint of harassment. Claims of retaliation are increasing nationwide even when the underlying conduct does not rise to the level of unlawful harassment. But a policy should not contain a promise of confidentiality because if a concern is raised, the employer has a duty to investigate and take corrective measures to address the problem. Often, strict confidentiality is not an option, especially if a public-record request for documents is made subsequent to an investigation.
In addition to having a written harassment policy, it is essential that employers train employees regarding harassment. The ideal time to conduct a refresher course on your harassment-free workplace policy is before the holiday party. Remind employees that all forms of harassment are prohibited, whether based on sex, race, national origin, religion, age, sexual orientation, marital status, or disability. In advance of the holiday party, remind employees not to engage in unwelcome physical conduct, request sexual favors, or make racist or sexist comments or jokes. An effective reminder is the inclusion of a written copy of your harassment policy with paychecks.
Ensure that employees understand that harassment runs horizontally as well as vertically, i.e., harassment is prohibited between coworkers as well as between superiors and subordinates. Emphasize that harassment is prohibited at all company-related events, not merely during working hours, and ensure that employees understand the complaint procedure and your policy against retaliation. Remember that the employer has an obligation to respond if it observes or otherwise learns of harassment. Consequently, management awareness at holiday parties is essential. Be on the lookout for conduct that may be inappropriate, including overindulgence in alcohol.
If a holiday party is in your plans, look for creative and positive steps to ensure acceptable conduct. For example, if employees consume alcohol, consider providing free alternative transportation, or consider appointing a management employee to be the designated nondrinker during the holiday party.
Although the holidays may be unusually busy and stressful, a few hours spent in prevention and harassment training may prevent problems and an expensive lawsuit. By following such practices, employers and employees may enjoy holiday cheer and have a Happy New Year.