It seems that everyday, another celebrity from the entertainment or political world sees their career come crashing down as a result of inappropriate sexual conduct, generally in a workplace environment and frequently involving a co-worker or a subordinate.
We are also in the season of the holiday office party. No office or work situation is more fraught with danger than an open bar and workers in the festive spirit.
Although damages and settlement awards involving workplace harassment claims will never compete in terms of either size or volume with those involving litigious Americans, Canadian employers need to be cautious. The #MeToo movement is shining attention on the important topic and the inevitable result is that the boundaries of workplace sexual harassment are expanding.
Our Supreme Court has defined workplace sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment”.
Virtually any form of behaviour (actions or words) could meet that definition if they are unwelcome and sexualized.
Further, there must be a connection to the workplace. If a small group of employees go to a bar after work, that connection is probably not met. However, a company business trip or conference and a visit to a pub would most likely qualify, as would activities on the company sponsored softball team. There is little doubt that the office Christmas party is a work-related event, even if attendance is optional.
Employers have an obligation to ensure a workplace, broadly defined, is free from harassment, sexual or otherwise. Historically, Human Rights Tribunals and Arbitrators required a pattern or series of incidents to qualify as harassment. This too has been modified and now a single serious act, with lasting consequences, will qualify.
In Canada, the federal government has recently introduced legislation for federally regulated employers (banks, communications and transportation) which will force employers to formally investigate and document all complaints of workplace sexual harassment. If the do not, they can be named. Companies will need to avoid the negative publicity associated with not taking these matters seriously.
Most sexual harassment claims in Canada are adjudicated before human rights commissions or arbitrators in the unionized workplace. Damage awards so far have been small. But with heightened sensitivity and awareness, it is clear that even the allegation of improper conduct can end a career or cause irreparable damage to an employer. The court of public opinion is often more damaging to a reputation than a court of law. This explains why employers will terminate an employee on the basis of an allegation. Acting otherwise (or not acting) would be a public relations disaster for the company.
This is causing prudent employers to rewrite their human resource manuals, including zero tolerance policies and sometimes even banning consensual workplace relationships.
So with that background, here are some suggestions to reduce employer exposure to sexual harassment claims as a result of bad behaviour at the holiday office party:
- Don’t overserve alcohol to your guests. Consider replacing the open bar with a cash bar and give each guest 2 drink tickets. Even a “toonie” bar deters overconsumption.
- Don’t hang mistletoe. Outdated, silly, traditions must be modified or eliminated.
- Do have party monitors and / or camcorders watching for inappropriate behaviour. Even a non-functioning camera will serve as a deterrent to bad behaviour.
- Have the event on a weeknight; people will generally stay longer and drink more on a Friday after work or Saturday evening.
- Serve more food; guests need something to do. Better an extra chicken wing than an extra cocktail.
- Ask bartenders, servers and even some sober employees to keep an eye on things and events and bring potential problems and issues to the manager in charge of the event.
- Consider moving the event off site. But this can go either way; some people are more “relaxed” at an offsite party and might let their guard down more than normal. Alternatively, having the event at an elegant or upscale establishment makes boorish behaviour less likely.
- Patrol areas adjacent to the party—hallways, corridors, elevators and secluded areas.
- Be vigilant in watching for guests who appear to be in an uncomfortable situation or conversation. If a person appears to be visibly uncomfortable, intervene by joining the conversation or invite one of the participants away (“Jim needs to speak with you for a minute”).
- You can even encourage small groups of employees to develop a buddy system and a “safe signal” (such as constantly rubbing an ear or eyebrow) that alerts the other members of their group that someone is in an uncomfortable situation from which they cannot extricate themselves.
- Make sure you have a general harassment policy and protocol in place and make sure that any party complaints are investigated, documented and dealt with consistently as any other work-related harassment complaints.
Although inappropriate sexual behaviour is on a continuum from criminal sexual assault to unwanted sexual attention, anything on that continuum can cause problems in the workplace. For the last twenty years, employers have had to take precautions to ensure their guests get home safely after an office party to avoid host liability if one of their guests is involved in a serious motor vehicle accident.
In 2017, employers are going to need to take comparable precautions to ensure the workplace, including the office holiday party, is a harassment free environment. Proactive measures will reduce the likelihood of an incident and also mitigate employer responsibility if there is one. Most importantly, it will help insure that ALL of your employees and invited guests have a safe and enjoyable time.