Beware the office Christmas party

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To paraphrase Dr. Seuss:

Every who in the office liked the Christmas party a lot, but the lawyer who advised on HR matters did not. Yes, I suspect my clients sometimes think of me as a “Grinch.” That’s okay. I understand, and I don’t take it personally. My job is to help my clients manage their legal risks, and sometimes that requires me to be the wet blanket.

So, in that spirit, let us discuss the office Christmas party.

The first question that may be going through your mind is, “Can we still call it a ‘Christmas party?’ and not get sued?” For private employers, the answer is probably yes.

Certainly, employers cannot discriminate against their employees on the basis of religion, and that includes not imposing religious beliefs on them. But there is a clear distinction between imposing religious beliefs on others and hosting a secular Christmas party. Still, many employers, not wanting to offend anyone and desiring to make all employees feel welcome, have replaced their “Christmas party” with a “holiday party” or “end of the year party.”

Of course, this invites protest from those Christian employees who regard renaming the party in this way as an act of cultural war. You can’t make everyone happy. Even those employers prepared to host an office Kwanzaannukahsolsticemas party are likely to leave some employees unsatisfied. Promoting diversity and inclusiveness is a noble pursuit, to be sure — but what employers decide to name their office party is not likely to result in legal liability.

Liability is instead much more likely to arise from the conduct of employees at that party.

It is not surprising that employees should act differently at an office party than they would normally act during the workday. Certainly, the presence of alcohol is a factor. According to Workforce Management, liquor is served at 86 percent of office holiday parties. Alcohol, combined with the relaxed, festive atmosphere of an office party, can easily lead to potential legal liability.

One area of potential concern is sexual harassment. According to the Insurance Journal, sexual harassment claims spike in January. Regardless of whether this spike is due entirely to office party conduct, office parties are obviously ripe environments for unwelcome sexual jokes, comments and come-ons. And employers can be held responsible for such conduct at a company-sponsored party, just as they would be in the workplace during the regular workday.

Employers should also be concerned about loose-lipped employees at the office party.

Again, in the relaxed, festive atmosphere of the office party, employees may say things that can create liability for the company — such as sharing personal information about co-workers or discussing confidential company matters. In one well-publicized British case, an employee sued his employer claiming he had been promised a raise that never materialized. The alleged promise was made by a manager in an informal conversation at — you guessed it — the company Christmas party.

Liability may also arise from unexpected acts. Last year, a woman in Chicago was dancing with her boss’ husband at an office party when the husband grabbed the woman, tossed her into the air … and then failed to catch her. The woman crashed to the wood floor and suffered a fractured skull. Early this year, the woman brought a lawsuit for “negligent dancing.”

Not all problems can be avoided. But there are steps employers can take to reduce possible liability from office parties:

• Make it clear that attendance at the office party is non-mandatory, and — if possible — hold the party off-site. If the party takes place outside the course of employment, employers may avoid workers’ compensation exposure for injuries at the party.
• Although you are not likely to face a lawsuit for holding a “Christmas party,” you may offend some employees or make them feel excluded. Be sensitive.
• If you serve alcohol, make sure you don’t serve alcohol to underage employees. You can be liable not only for serving them, but for any resulting injuries. In general, managing employees’ alcohol consumption can prevent injury and other legal problems, such as those discussed above.
• Consider reminding your employees of your employment policies. Let them know that harassing, inappropriate, and unprofessional conduct will not be tolerated — even at the office party.

Reining in some of the “fun” of the office party may cause some grumbling by employees. If that happens, just blame the lawyer. Consider that my Christmas gift to you.