Holiday parties are right around the corner. While these office gatherings can bring your colleagues together and reward employees for their hard work over the year, they also can lead to unwanted conduct by employees and supervisors, especially when alcohol is involved. Employers should be aware of the risks and take proactive measures to protect their employees and themselves.

Employment Laws – Introduction

Title VII of the Civil Rights Act of 1964 expressly protects employees from discrimination based on sex, gender, race, color, national origin, or religion. Other federal statutes, like the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”), expand those protected classes to include disability and age, respectively. State and local laws include further protected classes, such as the Colorado Anti-Discrimination Act (“CADA”), which includes ancestry, creed, sexual orientation, gender identity, gender expression as statutorily protected classes.

Discrimination or harassment against any individual based on their protected class(es) is unlawful under these statutes. Further, the conduct of third parties—such as vendors or bartenders—can lead to liability under employment discrimination and harassment laws for which employers could be responsible, under certain circumstances.

Title VII and Sexual Harassment

Sexual harassment claims can be some of the more difficult to bring or defend. They are often (but not always) based on testimonial evidence from the victim, the alleged harasser, and/or witnesses, which may be sparse. Sexual harassment claims can impute liability onto the employer whether perpetrated by the employee’s supervisor (who, for Title VII purposes, is the agent of the employer) by the employee’s coworker (even a colleague who does not have the traditional supervisory authority over that employee), or by third parties, such as vendors and contractors.

Title VII recognizes two distinct types of sexual harassment: (1) quid pro quo, in which the employer takes tangible employment actions against an employee because of an employee’s refusal to concede to the sexual demands of a supervisor, and (2) hostile work environment claims, where an employee alleges that the harassment suffered by the employee was so severe that it altered the terms and conditions of her employment. Hostile work environment claims can be brought even by unintended targets of sexual harassment where employees simply observe or hear sexually unwelcome conduct that may in fact be directed at someone else. As an example, say you are hosting a holiday party for your employees with a cash bar and bartenders provided through a third-party service. Those bartenders are not your employees and are not affiliated with the company in any way. One of the bartenders makes several sexually implicit or overt comments about your female employees’ outfits and their bodies in general. A female employee standing at the bar hears the comments and finds them sexually offensive. This situation could well lay the groundwork for a hostile work environment claim if the employer fails to address the employee’s complaints or the employee is not properly informed on how to make such complaints.

ADA Claims

The ADA is generally not the first source of rights or obligations that employees or employers may think of when imagining the ways in which a holiday party could go sour. However, as we continue to deal with COVID-19 and our ideas about the traditional “gathering” evolve, these potential claims should not be ignored.

Under the ADA, a claim will arise if an employee can prove that they were either discriminated against based on their disability or denied reasonable accommodations for their disability. In the holiday party context, discrimination could occur where the employee, because of their disability, is told not to attend the event in person or where they are punished for not attending the event.

Preventative Measures for Employers to Take

The most obvious proactive measure to prevent some of the situations above is to limit or monitor the amount of alcohol available to employees during holiday parties. Providing drink tickets or limiting the duration of the event may help serve this purpose.

Supervisors also should be reminded that discrimination and harassment can occur even when employees are “off the clock” at these holiday gatherings—any observed potential discriminatory or harassing conduct should be addressed immediately. Supervisors also should be informed that claims of discrimination and harassment can arise even when employees are gathering in public spaces or at restaurants and bars outside the office or away from the worksite. Any reports of discrimination or harassment should be taken seriously and investigated according to the employer’s policies.

Distributing the employer’s policies against sexual harassment prior to the holiday gathering ensures that employees and supervisors understand their obligations and rights. Distributing the existing policies, or creating company party-specific guidelines, will also help refute claims that employees were not properly advised of or privy to the employer’s sexual harassment reporting policy.

Providing different options to employees can also reduce the potential for morale issues and discrimination claims. Zoom parties are, for many of us, a phase of the COVID-19 pandemic we would rather forget. But, for employees who are disabled in such a way where in-person gatherings may exacerbate their existing disability, it is important to recognize that virtual options are still important to make everyone feel safe and included.

Many employees continue to wear masks in the office or other public spaces, which practice should be respected and welcome. Many employers continue to encourage the use of masks and, while not required, it is a good idea to inform employees that they can wear masks to holiday events and not to attend in-person (with or without a mask) if they are showing symptoms of illness.

Conclusion

While holiday parties can be fun way to build camaraderie and celebrate the year’s success, it is important employers don’t lose sight of the fact that federal and state employment laws apply to such gatherings. 

If you have any questions about how you can promise a fun and safe holiday party to your employees, you can contact Michelle B. Ferguson at mferguson@irelandstapleton.com or Jennifer M. Kinkade at jkinkade@irelandstapleton.com.

What is written here is for general information only and should not be taken as legal advice. If legal advice is needed, please consult an attorney.