SEXUAL HARASSMENT AND OTHER LIABILITY CONCERNS OF EMPLOYERS

There was a time when employers were primarily concerned about risk of liability for injuries caused by intoxicated employees at holiday parties.

Today, employers must consider the possibility of potential sexual harassment claims in light of recent substantial jury verdicts arising out of office party incidents.  Such incidents may include:

- a touch on the shoulder that becomes an extended embrace.

 - comments about a worker's attire.

Recently, several courts have found allegations of offensive comments and unwelcome touching at office parties, coupled with evidence of harassment conduct at the office, sufficient to state a claim for hostile environment sexual harassment under Title VII of the Civil Rights Act.

However, when allegations of harassment have been based solely on isolated remarks or occasional episodes at corporate parties, without any allegations of a pattern of similar behavior in the work place, courts have been less willing to sustain hostile-environment claims.  However, allegations may be sufficient if a single episode is sufficiently severe.  For example, a sexual assault at a party should be sufficient to establish a claim and creates an abusive work environment.

In addition, suggestiveness and lewd entertainment may also be considered offensive.  In one case, the hiring of a female stripper at an employer-hosted function may be sufficient.

In one case, a supervisor's gift of red lace underwear did not constitute sexual harassment because actionable sexual harassment must consist of more than just isolated incidents or casual comments that express harassment or hostility.

Limiting your potential party liability:

Sexual Harassment: 

Employers concerned about sexual harassment claims should take a number of preemptive measures to limit potential liability, particularly in informing employees in advance of parties that an existing sexual harassment policy remains in full force and effect at all work-sponsored events.  Employers should strongly discourage the giving of inappropriate or suggestive gifts at holiday events and should avoid potentially offensive entertainment.  The best way to avoid problems is to promote family-orientated holiday celebrations scheduled during the afternoon with invitations extended to spouses and children.  This may also encourage greater sobriety.

Distance Yourself: 

Some employers have been held responsible for car accidents caused by inebriated guests, particularly in the courts find that the employer did not supervise the party and did not prevent excessive drinking.  The more the event is tied to the business, the greater the chance for liability.  Make it a social event by not inviting customers or vendors and make sure all employees know that attendance is voluntary.  Hold your party off-site, which shifts potential liability to the restaurant or hotel.  Hire independent caterers to service the party on-site.  Don't permit any employees to serve alcohol.   Avoid an open bar, limit an open bar to the first hour or close the bar one hour before the party ends.

Provide transportation: 

Make sure that alternative transportation is available to and from the event.  Better yet, reserve a block of rooms at the hotel and encourage employees to use the rooms rather than drive home.

Alcohol Free events: 

A number of employers have opted for alcohol-free holiday events in order to reduce potential liability for injuries.  Not only does this reduce potential liability for injuries caused by intoxicated employees, it also may diminish the likelihood of unwanted advances and offensive behavior leading to sexual harassment suits.

Investigate: 

If any allegations of sexual harassment are raised, employers should thoroughly investigate all harassment complaints brought by employees after holiday parties and take prompt and appropriate actions against any employees who violate harassment policies at office events.               

Holiday parties should be a time of exchanging good wishes and promoting harmony amongst all people, particularly amongst your employees.  Taking proactive measures will only insure that everyone has a good time.                                                                               

About the Author:

William P. Boznos is an attorney practicing with the law offices of Bellas & Wachowski.  The firm handles business law and commercial litigation.  Mr. Boznos has served as Senior Counsel to Kemper Insurance Companies and has held senior corporate roles as the Director of Human Resources for Zenith Insurance Company and Harrah's Joliet Casino & Hotel.  Bill's area of specialization is Employment Law.