The Sophisticated Employer Blog

You can’t ignore it. Every day it seems a new story is breaking involving allegations of sexual harassment in the workplace. Employers are – or should be – thinking of ways to be proactive to ensure sexual harassment doesn’t occur in their offices.

But what about the company holiday party? What liability does an employer have for the off-site, after-hours conduct of its employees? And what can employers do to limit that liability?

Importantly, the law does not limit employer liability for sexual harassment to that conduct that occurs within the confines of the office. And, numerous published decisions from Michigan and federal courts include allegations of improper behavior that occurred at a company holiday party, off-site dinner, or via social media.

In general, sexual harassment occurs when an individual is subjected to unwelcome conduct on the basis of sex that creates a hostile work environment. It is undisputed – a hostile work environment can be created by off-duty and off-premises conduct.

As such, we frequently caution our clients to reinforce the application of the company’s code of conduct, dress code and other workplace anti-harassment rules prior to off-site events. Other practical steps that may limit the occurrences of inappropriate conduct and company liability:

• Host parties during the day and don’t sponsor any “after hours” continuation of the celebration.

• Limit alcohol consumption – don’t have an “open bar” for an excessive period of time.

• Offer to pay for car services and gently suggest to any individual that appears under the influence to leave the party before an incident arises.

• Remind management about their obligation to prevent harassment and advise that it is their responsibility to immediately address any inappropriate touching and/or conversations that would not be permitted in the workplace.

• Ensure accountability from the top down. Don’t allow the “superstar” performer to get away with something that would result in disciplinary action for a lower-level or less-producing employee.

• If allegations are made about conduct at the party, immediately launch a thorough investigation.

Knowledge and training are critical to preventing liability and ensuring that all employees can enjoy the holiday party and start 2018 on a positive and productive note.