Employment & Labor Insider

Happy Holidays!  It's that time of year again.  A feeling of excitement in the air, presents, parties, frivolity, EEOC charges . . . No, this is not a guessing game of “which word doesn’t fit.” With the end of the year coming to a close, and the holiday season culminating with one of the biggest Christian holidays of the year, EEOC charges and other workplace complaints are bound to occur. Between office holiday parties and sometimes “forced” Christmas cheer, complaints may arrive in employers' stockings.

Specifically, Title VII of the Civil Rights Act prohibits employers from discriminating against employees on the basis of certain protected characteristics, such as sex and religion.

Let's talk about sex

The ban on sex discrimination in Title VII includes sexual harassment (complaints which have been known to occur after office parties). Harassment can include unwelcome sexual advances, requests for sexual favors, sexual jokes, and other verbal or physical harassment of a sexual nature. Employers should take preventive measures in addition to defensive ones -- they should have a no-harassment policy with an effective reporting procedure that is well communicated, and provide regular training to management and non-management employees.

The following are real-life examples of lawsuits that arose from employers' holiday festivities:

• An employee sued her employer, alleging sexual harassment stemming from incidents at two employer-sponsored Christmas parties. At one party, the Chief Executive Officer wore a Santa hat with offensive language written on it. Then, a supervisor dressed as Santa Claus asked three female employees to sit on his lap, and he proceeded to interrogate them about their love lives. A California jury returned a verdict of $250,000 on this claim, along with others.

• While attending a Christmas party, a supervisor at a West Virginia retail store said to a male associate, “Here is your Christmas present,” while grabbing his crotch. The associate expressed his displeasure with the supervisor’s actions, and in turn the supervisor changed the schedule to make the associate work on Christmas Day. The associate sued for same-sex harassment and retaliation. A jury awarded the associate $80,000.

Both of these verdicts were overturned on appeal, but the employers' costs incurred in defending the lawsuits were undoubtedly high.

Religion during the holiday season

As for religion, not only must employers not discriminate against an individual based on religion (or lack of religion), but they also must take affirmative attempts to accommodate an employee’s religious beliefs or practices. Because Christmas is a Christian holiday, employers must be careful to avoid excluding employees of other faiths -- if not expressly, then by implication. The law requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. These issues often crop up during the holiday season. Here are some more real-life examples:

• A North Carolina retail store required its employees working in the gift wrapping section to wear Santa hats and aprons during the holiday season. One employee, a practicing Jehovah’s Witness, refused to wear the hat and apron for religious reasons. In response, the store fired her. The EEOC sued, and the store settled for $55,000.

• A manufacturing company in Kentucky required its staff to answer incoming calls with the greeting, “Merry Christmas.” An employee who is a Jehovah’s Witness informed her employer that she would not answer the phone that way because it violated her religious beliefs. The supervisor and vice president told her that she must do as she was told, but she refused and left the job. The state Court of Appeals found that the employer failed to accommodate the employee’s religious beliefs.

If an employee comes to you with a request for a religious accommodation, you should consider the accommodation and start an interactive conversation with the employee about possible accommodations. An accommodation may be as simple as an exception to a dress code or to a minor workplace practice. It could also include allowing the employee to "opt out" of your holiday party if he or she wants.

Parting thought

So, as you are pouring the eggnog and thinking of ways to spread the “holiday spirit” among your employees, remember that as an employer you still have certain obligations. This is by no means an attempt to curb holiday enthusiasm, as I am probably one of the most annoying holiday cheerers in my office (Christmas sweater and all). But employers also shouldn't expect to be able to cut loose at their holiday parties the way they might if they were celebrating with family or friends.

Thanks very much to my colleague Patricia-Anne Brownback, who provided the examples from court cases in this post.