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Kate McGuinness Headshot

Skip the Mistletoe

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Delighted that his company has had a good year, the boss plans an extravagant holiday party with an open bar. After celebrating with the staff for a couple of hours, he excuses himself and returns dressed as Santa. Employees applaud, but when he invites an attractive analyst to sit in his lap, she declines with a scowl. Feeling festive and a bit tipsy, he tugs her hand and urges her again to take a seat. She stomps off and, within days, files a sexual harassment complaint.

This scenario spawned an actual lawsuit, one of the hundreds arising from office parties. Regardless of where it's held, a company-sponsored party becomes an extension of the workplace and workplace rules apply. As such, it can be a minefield of employer liability.

The relaxed atmosphere of a holiday celebration coupled with alcohol consumption creates a setting where a party-goer may try to get inappropriately friendly with a co-worker. That pretty woman from accounting might look especially lovely in her holiday outfit and, with alcohol-lowered inhibitions, someone may make a pass. If suggestive words are spoken or offensive gestures are made, there will be a whole roomful of people who can act as witnesses for the plaintiff.

Here are a few suggestions to keep the inhibitions in place and to minimize the risk of liability.
Serve alcohol-free "mocktails" instead of cocktails. Or if that's too extreme, serve only beer and wine -- no distilled liquor. If any alcohol is behind the bar, employers can provide "drink tickets" with a limited number given to each employee. In addition to deterring sexual misconduct, limits on alcohol can also protect the employer from dram shop liability arising from a drunken employee's actions after leaving the party. Taxi rides should be provided by the company if a guest overindulges.

Employers should also serve substantial food along with any alcohol to lessen the effect. Some believe fatty, starchy food is the most beneficial in this regard. Stay away from salty snacks that will increase the desire to drink.

Although music and dancing can add to the festivities, they also carry the risk for improper and unwelcome touching. Other considerations are the time and location of the party. An evening gala in a flashy locale is more likely to be the setting for sexual harassment. A better choice is low-key and late afternoon when people's minds are still in a work mode. Another deterrent to sexual harassment is inviting the spouses of employees. Each husband and wife will have a personal enforcer!

A memo circulated the day of the party could also help establish the tone by reminding employees it's an occasion for business colleagues to celebrate the company's performance in a joyful, but professional and respectful manner. The message can be underscored by adding that conduct consistent with the employer's policies is expected. It is especially important that supervisors understand these constraints because employers are liable for supervisor harassment of an employee with less power or authority. (Employers are liable for harassment of one employee by another of equal rank if the employer is aware of it. In a party setting, open harassment visible to all would meet this standard.)

If a complaint arises about conduct at the party, the employer should investigate it promptly. Remember those witnesses!