As the holiday season approaches, it is a good time for employers to review their policies and take preventative measures to ensure festivities do not get out of hand at office holiday parties. The dangers of blurring the lines between professional conduct and holiday celebrations was demonstrated in a recent case out of the United States District Court for the Eastern District of California. The lawsuit alleges that following an office holiday party, a managerial employee invited several co-workers to a second location to continue celebrating. It further alleges that toward the end of the night, the manager and one of his reports ended up alone in the hotel room and the manager sexually assaulted her.
This resulted in a sex discrimination and harassment lawsuit brought by the EEOC against a northern California retailer, EEOC v. Elite Wireless Group, Inc., 2:19-cv-02187. The case is a timely reminder that even offsite functions, such as holiday parties, can lead to employer liability. Accordingly, employers should consider what they can do before, during, and after holiday parties to help prevent issues before they arise, and effectively address them if they do. Here are a few suggestions:
- Training: Conduct regular and robust sexual harassment training, and remind employees that the same expectation of a respectful workplace that applies in the office also applies at offsite office parties. Note that sexual harassment training may be required depending on where your employees work. In California, for example, employers must provide 2 hours of sexual harassment training to supervisors. And effective 2021, employers with 5+ employees must provide at least 1 hour of sexual harassment training to non-supervisors.
- Alcohol: There are pros and cons to an evening event with alcohol vs a daytime event without it. If serving alcohol, consider using drink tickets or reducing the time that alcohol is served to limit consumption. Also consider covering the cost of transportation home.
- Social Media: Remind employees not to post photos or videos of co-workers without their consent to help mitigate privacy concerns and media that could reflect poorly on the company.
- Set the Example: If management employees attend the party, have them set the example for appropriate behavior.
EEOC v. Elite Wireless demonstrates how dangerous and costly it can be for employers who do not set clear expectations and ground rules before holiday parties. If faced with an allegation of sexual harassment at a holiday party, employers should act promptly to investigate the complaint and respond appropriately. In this case, after the sexual assault, the employee filed a criminal report with the police and reported the incident to the company. The employee also requested a leave of absence, which the company denied. The company informed the employee that it could not transfer the manager due to his position as a manager, and transferred her to a store location that was an additional 20 miles away from her home.
Over the next month, the employee was absent and tardy multiple times and received verbal and written warnings. The company informed the employee that it investigated her complaint about her former manager and found no evidence to corroborate her allegations. The employee continued to miss work and was ultimately fired for repeated violations of the company’s attendance policy.
After her termination, the employee filed a charge with the EEOC alleging discrimination based on sex. The EEOC investigated and found reasonable cause to believe that the company violated Title VII. After failing to settle with the company, the EEOC filed a lawsuit seeking monetary damages for the sales clerk and injunctive relief to prevent future sexual harassment.
Although each situation is unique, employers may mitigate the potential for liability if faced with a credible allegation of sexual harassment by following these steps:
- Respond Promptly to the Complainant. In the event of an employee complaint about a co-worker’s or supervisor’s conduct, it is generally recommended to: (1) talk to the employee, and assure him or her that the complaint will be investigated; and (2) promptly investigate the complaint and take detailed notes of any conversations with employees.
- Consider an Attorney to Direct the Investigation. Consider engaging an attorney (whether in-house or outside counsel) to direct the investigation into the complaint. Besides ensuring that the complaint is properly investigated and that relevant evidence is preserved, attorney involvement may help protect certain communications to management and executives under the attorney-client privilege. For more information about the attorney-client privilege as it relates to internal investigations, read our recent blog post on the issue here.
- Consider Protective Measures Pending the Investigation. Depending on the circumstances and the allegations, consider whether to take additional steps such as altering work assignments or work schedules, allowing the complainant to work from home, or placing the alleged harasser on leave.
Each situation is unique. If faced with a credible allegation of sexual harassment—at a holiday party or otherwise—consult an attorney to determine the appropriate response given the facts at issue.