With mistletoe a virtual invitation to an official complaint and couples dancing almost as dangerous, employers must take care in their planning

By Howard Levitt

Original Source: National Post

Only last March, U.S. Vice-President Mike Pence was roundly ridiculed for declaring that he would never eat alone with any woman other than his wife nor attend a social function featuring alcohol without her by his side. (If such an attitude took root, critics declaimed, women would be deprived of mentoring opportunities.)    

The criticism has been silenced. Some male executives have confided in me that they consciously leave their office door open when meeting alone with a woman, particularly in the evening.  

The reverberations of the Harvey Weinstein accusations have been widespread in a way those of previous scandals were not. In vast numbers, women are now decrying previous acts of sexual predation, some decades old.

Employers are concerned at the prospect of nascent claims of sexual harassment and the impact such could have on their organizations. They do not know whether harassment previously occurred in their workplaces, let alone by whom.

Even if the complaint is more than two years old and there is no accordant legal basis for a lawsuit, employers still have an obligation to investigate and deal with employees’ illegal conduct. If they fail to do so and that employee harasses another, the employer will be negligent in not having taken appropriate remedial action when they could have. 

In this era of internet dating and concerns about workplace sexual harassment, it seems almost quaint that, not many years ago, most Canadians met their spouses in the workplace. Now, asking a co-worker on a date is fraught with risk.

This leads to the subject of office holiday parties, many of which are well into the planning stages.

The riotous fêtes of yesteryear have become, by necessity, much more subdued. With mistletoe a virtual invitation to a harassment complaint and couples dancing almost as dangerous, employers have to be careful in their planning. I have seen many cases of office parties go awry, and alcohol has been the common denominator.

Sexual harassment is defined as conduct of a sexual nature that the perpetrator knew or ought to have known was unwelcome. The determination of “ought to have known” has a significant subjective component and, when alcohol is involved, that line quickly blurs. Sometimes alcohol reduces an employee’s inhibition so that they make off-colour sexual, or racist, jokes. Other times employees have had secret crushes on co-workers and alcohol fuels their perception that it is mutual. Alcohol can also distort the perception of the person approached. The worst tragedy flowing from office parties is that of inebriated employees getting behind a wheel, causing injuries or fatalities. In all cases, the employer could be liable.  

What do I recommend?

— If your budget permits, invite your employees’ significant others to your office celebration. That might affect its team-building nature, but limits potential sexual harassment issues

— Unless spouses are invited, do not have dancing

— Provide limited drink tickets, no more than two per person, and prohibit employees from providing their tickets to others

— Have monitors who do not drink ensure that employees do not become inebriated. If they somehow still manage, do not allow them to get behind the wheel of a vehicle. Remove their keys if that is what is required; the law permits that

— Provide hotel rooms or taxi chits. In any event, prevent employees from driving to and from the event

— Have policies concerning harassment, including sexual harassment, posted in the workplace delineating the consequences and the procedure for filing a complaint.