Stay out of legal hot water by making your Christmas party Ho Ho Hum
By Howard Levitt
The ghosts of Christmases past will often haunt employers for years to come.
Workplace parties have reverted from the Ho Ho Ho of yesteryear to a more pedestrian Ho Ho Hum. The law, unfortunately in many respects, mandates that.
Not so long ago, most people met their future spouse at the office. Today, it is risky to ask a co-worker on a date.
An employee may have had a secret crush on a co-worker all year but, imbued with hope fuelled by intoxication, imagines it is reciprocal and makes approaches at the company party that can lead to sexual harassment charges.
Formerly, we had mistletoe. Today, prohibitions on unwanted kisses or other advances. Some case law suggests that sexual overtures from a superior to a subordinate is invariably sexual harassment because of the inherent imbalance in bargaining power.
Whatever the law, many employers have policies prohibiting superior-subordinate dating. Quite apart from the relative positions of the employees, it is always sexual harassment to make any sexualized advance on any coworker, which you knew, or “ought to have known” was unwelcome.
The difficulty is that alcohol impacts both sides of that perception. The person who is approached may exaggerate the advance in their mind, creating a greater danger of an ensuing sexual harassment complaint and demanding that the perpetrator be fired.
There is another issue. Some employees, at any given time, are disgruntled with their employment and wish to leave with severance. A small minority are prepared to aggrandize allegations and too quickly allege a poisoned environment in an effort to obtain a severance package.
Sexual harassment allegations can be devastating to an employee’s reputation and career. I recall one case where an executive, accused of sexual harassment at a holiday party was at a mediation. He and his employer were being sued as result of comments this executive allegedly made to a junior employee at a holiday party.
The complainant complained and never returned to work. At the conclusion of the mediation, the parties were $10,000 apart in their settlement discussions. The executive reached for his chequebook, wrote a cheque for the $10,000 and declared it money well spent to end the stress after a year and a half of that litigation.
Alcohol at holiday parties leads to a potentially more serious problem. If an employer hosts a party and permits an employee to leave intoxicated who then has an accident, injuring himself and/or others, the courts have awarded damages against that employer in the millions.
That is why it is permitted to remove keys from an employee who is about to drive intoxicated. Limited drink tickets, rules against employees providing their tickets to others, hotel rooms provided to employees living far from home and requiring designated drivers or hosts to patrol the party to ensure that no one becomes inebriated should be de rigeur.
The last employment issue flowing from holiday parties involves promises.
Alcohol infuses this issue as well, affecting both the person making the promise and the recipient. Overly enthusiastic managers, discussing their plans for the new year have been known to make representations of expected promotions, salary increases, etc.
Those promises can also be exaggerated in the intoxicated subordinates’ mind. If those promises are not realized, poor morale and sometimes constructive dismissal lawsuits flow.