Office Holiday Parties Gone Awry Make For Good Stories, HR Headaches

Woods Rogers’ Leah Stiegler and Emily Kendall Chowhan previously wrote a Today’s General Counsel series entitled “Employment Law in Focus.” You can find the first installment on workplace romance here, the second installment on resolving conflict in the workplace here, and the third on the challenges of employee termination here. Employment Law in Focus is now a recurring Today’s General Counsel column. This is the first installment.

It’s that time of year again when companies mix work and play: Halloween costume contests, Thanksgiving potlucks, office holiday parties, and New Year’s Eve celebrations.

We all like to have fun, but when employees are let out to “play,” it seems like all professionalism and good judgment go out the window. So, we’ve made this easy for legal departments. We drafted an email that you can send to your front-line managers or, with a few tweaks, companywide as a reminder that employees can be disciplined up to and including termination for conduct that occurs at (or after) company-sponsored holiday events.

To drive the point home, we provided actual workplace scenarios that we have helped clients navigate. Keep in mind that workplace discipline is likely the least of your worries; the real fear is the slew of harassment, discrimination, and negligence lawsuits that could follow after the party. 

[SAMPLE EMAIL]

Dear Employee: 

With company-sponsored holiday events and activities coming up, we wanted to remind you of your obligation to remain professional and exercise good judgment at the event (or even after). The same workplace policies that apply during work hours also apply at company-sponsored events. While we want you to have fun, we also want you to keep your job. 

So here are some tips from your incredibly wise legal department.

No offensive Halloween costumes

From our inbox: The subject line of a Nov. 1 email from an HR leader said, “Does Waldo have to be white?” A Black employee submitted a discrimination complaint to HR after the company’s Halloween costume contest because a white employee (one of the designated judges) told him that “he couldn’t be Waldo because his skin was too dark.”  The employee not only disagreed with the judge’s arbitrary limitations on who can wear a red and white striped shirt and beanie, but he also found the comment offensive and reported it to HR.  

We all know the workplace issue had nothing to do with any debate over Waldo’s “real” race. Indeed, the real issue was what sort of disciplinary or educational response we were going to provide to the employee who made the stupid comment.  

Rule: No blackface, no political figure wigs, and certainly no eggplant emoji costumes. You don’t want to be the employee that HR is trying to educate. Dressing offensively and saying offensive things can violate our professionalism, civility, and anti-harassment policies, leading to disciplinary action up to and including termination.

Don’t make comments about people’s weight or what they eat

From our inbox: Last year, an in-house lawyer asked whether state law included employee weight as a protected classification. Turns out, a female employee, who was on the heavier side, stirred a candy cane in her coffee every morning at the office between Thanksgiving and December (genius, right!?). A female manager commented to the candy cane employee that she’d “need to make a New Year’s resolution to lose weight if she kept up the candy-cane-a-day diet.”  

While some states do include weight as a protected characteristic, making comments about weight is equivalent to engaging in workplace harassment. We don’t even have to consider whether such a comment violates any anti-harassment law or policy. It is just a stupid comment, and you can be written up for making stupid comments.  

Rule: Between Halloween candy, mashed potatoes, stuffing, and unlimited Christmas cookies that will inevitably be in the break room, it’s guaranteed that employees will make comments about gaining weight or that other employees are gaining weight. There is no need for commentary from the peanut gallery (pun intended). Further, comments about weight and the way someone should look or what they should eat are statistically more likely to be directed at women than men, which may support gender-based harassment allegations. So, check your biases!

No proselytizing

From our inbox: One business had an employee place pop-up nativity sets on everyone’s desk in her department to add what she characterized as “Christmas cheer” to the office.  One atheist employee didn’t feel her cheer. This led to a big argument about whether Christmas symbolized the birth of Christ or whether it was a mere marketing ploy by big-box stores to increase materialism. Eventually, the whole office was involved in the debate, which led to hurt feelings, decreased morale, and the holding of grudges for years to come. HR had to step in and mediate a conversation so that everyone could get back to work.  

Rule: We respect all employees’ religious beliefs, and we certainly want employees to be able to exercise their beliefs. However, be mindful that not everyone shares the same belief system, so be respectful: Don’t argue, don’t proselytize, and certainly don’t debate the meaning of Christmas. Also, try just saying “Happy Holidays” unless you truly know an employee’s religious beliefs.

No sloppy drunks and no hands 

From our inbox: This reminder would be wholly insufficient if we didn’t bring up alcohol and sexual harassment. We recently heard about a company that had the holiday party from hell when the spouse of an employee insulted another employee’s Middle Eastern heritage.  Then there was the time a female employee claimed a male employee tried to kiss her when dropping her off after the party. And if that wasn’t bad enough, in another case, two employees went to pick up a third from the local jail’s “drunk tank” the morning after the party.  

Rule: There’s something about holding a beer in their hand that can make employees feel comfortable saying or doing whatever they want at office holiday parties. Offensive and inappropriate conduct by employees’ guests may result in disciplinary action up to and including termination for the employee who brought the guest. Off-duty conduct related to company-sponsored events and involving employees will be investigated as if it happened at work. Finally, if you’re going to drink, take an Uber. It’s a small price to pay when faced with losing your job for getting a DUI, serving jail time, or hurting someone while driving drunk.

Until next time,

Your super-wise legal department

[END SAMPLE EMAIL]