The Return of the Holiday Party: A Test of Anti-Harassment Policies and Practices

The holiday season is once again upon us. President Biden has declared the pandemic is “over,” and it’s time to party like it’s 1999 (or 2022).  In conversations with friends, colleagues and acquaintances, it sounds like more and more employers are returning to in-person holiday celebrations for the first time in several years.  While the “Company Holiday Party That Goes Awry” may seem like a movie or television trope, in real life these gatherings can be dicey territory from an HR perspective.  This year in particular, many coworkers will be gathering, in person, with alcohol, for the first time in years.  Some of us may be a little rusty at interacting live with actual humans after years of Zoom happy hours.  Adding alcohol to the mix could be a potential recipe for disaster.  So, it seems like good time to revisit best practices for avoiding harassment claims stemming from company-sponsored social gatherings. 

I am in no way trying to be a killjoy. Anyone who knows me knows I love a good party.  And I wholeheartedly believe we should, as a society, celebrate the return to relative normalcy.  Holiday parties are a great way to show appreciation for your workforce.  They also give employees a much-needed break after a year of hard work, and an opportunity to re-connect in person.  That said, it is also important to make sure that any such event is not only fun, but comfortable and safe for everyone. 

A recent sexual harassment complaint filed by a former Google employee in the U.S. District Court for the Southern District of New York highlights how alcohol-infused employee gatherings can lead to bad behavior, uncomfortable situations and legal risk, especially if not handled correctly by HR.  In Olohan v. Google LLC et al., the plaintiff, a white male, alleges he was sexually harassed by an intoxicated female colleague at a business dinner where everyone was drinking heavily.  His coworker, an Asian woman, purportedly touched his stomach and told him he had a nice body, that her marriage lacked “spice,” and that she knew he liked Asian women.  Olohan became uncomfortable and rejected her advances. He claims that several of his coworkers brushed off the woman’s behavior as her normal drunk behavior. Olohan further claims that he reported the incident HR but, to his knowledge, they never investigated, despite admitting it would have been escalated if a female had accused a white male of similar conduct.  At two subsequent off-site events, this same coworker allegedly once again became intoxicated and engaged in similarly inappropriate behavior towards Olohan.  According to the complaint, the alleged harasser then complained to HR about Olohan, in retaliation for rejecting his sexual advances.  Olohan believes her complaint ultimately played a role in Google’s decision to terminate his employment some months later.  Olohan is now suing Google and the former coworker in her individual capacity for discrimination, sexual harassment and retaliation.

Of course, as a former employment-litigator I know as well as anybody that there is another side to this story, so I am not in any way suggesting that the allegations in the complaint are the gospel truth.  But I also know from years of experience in litigation and investigations that situations of this ilk are exceedingly commonplace.  More importantly, one inappropriate drunken encounter at work can quickly turn into a major operational and legal headache for employers if not addressed promptly and adequately. 

But, there are ways to reduce the likelihood that these situations arise and to address properly if and when they do. So, my holiday gift to those planning corporate sponsored social events are a few simple suggestions for how to throw a party in a responsible fashion:

1.       Before the party: Send attendees a gentle reminder about your conduct rules and policies against bullying, discrimination, and harassment in advance.  Let employees know that compliance is critical to ensuring that a fun time is had by all, and that policies will be enforced, even if the event off-site. This reminds people that even though the idea is to let loose, they are still in a business environment and the company culture does not condone or tolerate inappropriate behavior.  This communication should also include a reminder about reporting avenues.  Make sure employees know where to go or who to contact if something makes them uncomfortable.  Remind everyone that the employer has a strict anti-retaliation policy and will protect those who come forward with good faith complaints.

2.       At the party: Designate an HR person and/or office leader to remain sober at the event to manage any difficult situations that arise. Consider instructing the bartender to track and limit individual alcohol consumption during the event.  Also consider offering your employees Uber or Lyft vouchers so that they do not have to drive home intoxicated or get a ride home from a coworker (which may put them in an uncomfortable situation).

3.       After the party: Take all complaints seriously.  As the Google case illustrates, anyone can sexually harass anyone under the law.  Do not brush off a complaint simply because it does not seem plausible (i.e., a white male claiming he’s being sexually harassed by a minority female - it’s possible).  You don’t have to take all complaints totally at face value, but you do have to treat all complaints as worthy of further consideration.  Investigate all allegations of behavior that, if true, would violate the employer’s policy.  If the allegations involve HR, whatever unit in your organization is responsible for conducting the investigations, or someone who is higher in the chain of command than the internal investigators, consider bringing in a neutral third-party investigator to ensure independence and impartiality (I happen to know who you can call in that situation, ahem).  It is also critical to close out the investigation properly.  If no evidence of wrongdoing is found, inform the complainant.  If the complaint is substantiated, inform the complainant (at a high level, you do not need to get into specific detail about the investigation, but that is a separate blog entry).  The upshot: do not leave the complainant hanging.  If you do, they will assume that you did not investigate and did not take the complaint seriously.  Finally, make sure that the results of the investigation are adequately documented in a file.  In the event of leadership or HR turnover it is important to have a record of the allegations and the results of the investigation.  Proper investigation closure also helps mitigate against the future risk of retaliation complaints. If you properly close out an investigation, and the complainant is later disciplined or terminated for some unrelated reason, it is more difficult for them to make out a plausible claim that the subsequent employment decision was motivated by retaliation.

Let’s be real, the Olohan case is a drop in the bucket for a company like Google.  But the vast, vast majority of employers are not Google.  A single lawsuit like this one this can cause serious pain to a small- or medium-sized organization.  Don’t let a well-intentioned holiday celebration lead to big-time liability.