Your Office Halloween Party Doesn’t Need to Turn Into a Sexual Harassment Case

Perhaps this is a case of “better late than never.” Or maybe I’m just prepping for next Halloween, in which case I’m extremely early.

In any case, many employers and employees seem to think that Halloween is a day on which most rules don’t apply. This is most definitely not the case, at least not in the workplace. While Halloween is definitely a time to let loose, and ignore some of our less-essential social conventions, civil society and the law don’t cease to exist on that day. The fact that a lot of people seem to forget this fact doesn’t excuse them if they get into legal trouble thanks to their Halloween antics.

The blog post I linked to above describes several colorful court cases from around the country (some are also discussed here and here) which involved sexual harassment and other inappropriate conduct at office Halloween parties, usually resulting in significant judgments for the plaintiffs.

There’s absolutely nothing wrong with offices hosting Halloween parties, or allowing and/or encouraging employees to wear costumes. However, it’s important for managers and employees alike to exercise some discretion. Halloween parties invite all kinds of inappropriate behavior. Inappropriate and offensive costumes are just one thing that can get employers into trouble. Sadly, there are still no laws against dressing up as whatever everyone is sick of hearing about in a given year. Write your Congressman.

So, what specific things should employers do to keep their Halloween parties fun, while avoiding legal issues including, but not limited to, lawsuits for sexual and/or racial harassment?

First of all, if you are going to encourage employees to wear costumes to the office, make sure they have clear guidelines as to what is and isn’t allowed – prohibit costumes that are too revealing, excessively gory, or racially offensive. Obviously, individual employees are going to have different opinions as to when a costume crosses the line. For this reason, managers need to be attuned to the sensibilities of their employees, since, obviously, a costume seen as perfectly acceptable in one workplace might be seen as offensive in another. In general, however, it’s best to avoid costumes such as “sexy [nurse/witch/maid/hippie/angel/devil/whatever],” and any “funny” costume whose humor rests almost entirely on a racial or ethnic stereotype.

Secondly, under no circumstances should an employer serve alcohol at any office party, Halloween or otherwise. The reasons for this are numerous, and obvious. First of all, alcohol impairs judgment and coordination. If you are the manager of a workplace that has any type of machinery or other dangerous items (such as knives, stoves, etc.) on the premises, you’re inviting an accident that could lead to a costly worker’s compensation claim.

Also, alcohol tends to lower a person’s inhibitions. In a workplace, this is a recipe for disaster. Combine revealing costumes with the consumption of alcohol, and somebody is probably going to say something wildly inappropriate, or make some kind of overt sexual advance at a co-worker. If you’re in a management position in your workplace, you’ll be held legally responsible for the actions of your employees while on the clock, so it’s essential to keep an eye on these things.

Office parties, particularly those for Halloween, also invite a wide variety of conduct which is not directly actionable, but which might lead to tension that could hurt workplace morale, or lead to a direct confrontation that leads to a lawsuit.

For example, while Halloween costumes focused around current events are usually popular (and if it’s something that we’ve all been sick of hearing about for months, so much the better!), a costume which directly conveys a message relating to politics, religion, or other controversial subject is a bad idea. Combine this with alcohol, and it’s very possible that it could lead to an argument which might get out of hand. Fisticuffs in the office? That’s a lawsuit.

I’m probably coming off as quite the wet blanket right about now. Is it possible to throw an office party that’s any fun at all, without risking a lawsuit? Honestly, I don’t know. The fact is that our society is fairly litigious, particularly in employment matters.

The U.S. has fairly strong laws prohibiting discrimination and harassment in employment, and most of these laws are primarily enforced through private action (if the law is violated, the victim of the unlawful activity brings a lawsuit for compensation). This is the system we’ve chosen, and it’s certainly done a decent job at rooting out overt employment discrimination. However, by its very nature, it necessarily means that there will be more lawsuits brought by employees against employers. That’s the tradeoff we’ve chosen to make.

Opinions will vary as to whether or not that’s a good thing. If we, and our elected representatives, agree that the positive aspects of laws against discrimination and harassment outweigh the negative, we’ll simply have to accept that maybe office parties won’t be as much fun as a party you’d throw in your own home. But, if you ask me, that’s not the worst thing in the world. We’d all love our jobs to be constant Happy Fun Times, but for the vast majority (if any) of us, that’s just not in the cards. It’s called “work” for a reason. If the laws that protect you from losing your job (or being driven out of it by harassment) based on your race, gender, or religion result in office Halloween parties that aren’t as much fun as they might otherwise be, I guess we’ll just have to deal.

It seems like a pretty fair trade to me.