How To Avoid Holiday Party Sexual Harassment

December 20, 2008

I’ve never much cared for holiday parties, but I will admit it’s fun watching normally staid employees make total fools of themselves after too much eggnog at the company shindig.

The problem is that when those antics cross the line, they can spell trouble for owners like me.

I’m not talking about standing on tables or donning lamp-shade head gear. I’m talking about sexual harassment–everything from mild transgressions and annoyances to serious abuses. Unfortunately, too many employees see a holiday party as a “no-fault zone” for improper behavior, which can lead to all kinds of complications.

Not that harassment is solely the province of holiday parties. Some polls show that 25% of women admit to being harassed in the workplace, with more than half of those reporting emotional harassment or inappropriate touching. Alcohol-infused holiday parties just boost the odds.

In Pictures: What You Need To Know About Sexual Harassment

In Pictures: Six Tips For Not Tripping Over Labor Laws

In Pictures: Eight Tips For Hiring A Great Lawyer

What constitutes sexual harassment? In legal terms, the answer includes sex-specific and derogatory language, sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature–if the conduct is unwelcome, severe and pervasive enough that it creates an objectively intimidating, hostile or offensive work environment and the worker subjectively finds it abusive. Even a single incident can constitute an actionable event.

Of course, these factors can only be determined by looking at all the circumstances, which may include the frequency and severity of the conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

The harasser can be anyone–including supervisors, clients or co-workers–and the victim doesn’t have to be the person directly harassed, but rather anyone who finds the behavior offensive and is affected by it. And the victim doesn’t have to demonstrate having suffered any lasting adverse effects for the behavior to be unlawful.

Sexual harassment generally falls into two categories: “quid pro quo” harassment (or the explicit tying of job benefits to sexual acts or submission to sexual conduct) and “hostile environment” harassment, or the active creation of an offensive work environment. In the past, most claims heard by the courts were of quid pro quo variety, in which supervisors demanded sexual favors in exchange for a raise or promotion.

Hostile-environment claims were first recognized in 1986. The Supreme Court said that even absent economic consequences, harassment (in that case, inappropriate touching) could constitute a violation of the law when it became “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

When is the employer liable for the actions of line workers and supervisors? Initially, the Supreme Court held that an employer is responsible for a supervisor’s misuse of his authority. In cases where the harassment was never reported by the subordinate employee, the Supreme Court established a defense to protect unwitting employers.

The employer must prove two parts of the test: (1) that he exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) that his employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

In other words, employers should not be held responsible for harassment if they have an anti-harassment policy in place even though employees fail to use it.

You don’t want to lose a sexual harassment suit. Damages can include wage and economic loss (back pay), medical and psychiatric care and other out-of-pocket losses, pain and suffering (anguish and humiliation), punitive damages and, if allowed by statute, attorney’s fees. Under federal law, noneconomic compensatory and punitive damages are capped on a sliding scale, depending on the size of the employer.

To protect yourself, first know the law (see paragraphs five and six above) Remember that even a single incident can get you in hot water, so get your attorney on the phone sooner than later.

Second, have a written policy on this stuff. A formal sexual harassment policy should be included in your employee manual. It should state what type of conduct (verbal, visual or physical) is impermissible and also cite examples of prohibited conduct, the legal definition of harassment, the names or titles of those to whom concerns should be reported, and a strict prohibition against retaliation for issuing complaints.

Note: The policy should not include a promise of confidentiality, because if a concern is raised, the employer has a duty to investigate and take corrective measures. (Don’t have an employee manual, let alone a sexual harassment policy? Make it a New Year’s resolution.)

Written policies aren’t enough, however. When it comes to harassment issues, training helps, too. Make sure your employees understand that the rules apply to relations between co-workers of equal stature, as well as between superiors and subordinates. There’s probably no better time to have this refresher course than on the eve of your holiday party.

Finally, be sure to attend your own bash. Annoying as it may sound, keeping a bead on those who’ve taken too many trips to the punch bowl will serve you well. And while you’re at it, try to have a little fun, too!

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: