Holiday Parties and Harassment

Holiday Parties and Harassment

Holiday parties can be fun and a perfect way of thanking and interacting with employees and colleagues.   Yet, accompanying the camaraderie of this festive season is liability exposure for employers.

Once the last cork is popped and the last gift is open, and once employees are uninfluenced by the libations consumed the night before, they begin to replay the comments, the jokes, and the not-so-subtle inappropriate hugs by co-workers, managers and supervisors alike.

The California Fair Employment and Housing Act (“FEHA”) defines harassment because of sex to include sexual harassment and gender harassment.   The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior, including unwanted sexual advances, leering, making sexual gestures, verbal sexual advances, touching and impeding or blocking movements. FEHA also includes gender-based harassment of a person of the same sex as the harasser.

During fiscal year 2013, 91% of the cases which the California Department of Fair Employment and Housing, the state agency that enforces discrimination laws, received were employment cases. That same year, the Equal Employment Opportunity Commission (“EEOC”), the federal agency that enforces federal discrimination laws, received 93,727 charges, of which 29.5 percent constituted sexual discrimination. You can see the EEOC statistics here and the DFEH statistics here.

All California employers have a legal obligation to prevent sexual harassment in the workplace, which includes the conference or lunch-rooms in which the office holidays parties take place. Holiday parties outside of the workplace do not exempt an employer from ensuring the safety of its employees. Although an employer may avoid liability it the harasser is a non-management employee, it will unlikely avoid liability if the employer knew about the harassment, did not have a program to prevent harassment and does not take immediate action to stop the harassment upon learning about it. Government Code Section 12940, subdivision (k) requires employers to take “all reasonable steps to prevent harassment from occurring.” Even more egregious for the employer is harassment at the hands (no pun intended) of its supervisor or agent, as California law holds the employer liable for their harassment. Employers should therefore continue to train its employees on harassment and ensure that it has well-written, thorough employee policies.  The holidays can be much more festive when employers adhere to their legal responsibilities and thereby mitigate potential liabilities.