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'Tis the Season to...Get Sued

Columnist

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Brandon R. Blevans
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Yes—it’s that time of year again: The time when materialism, gluttony, commercialism and religion collide in an orgy of retail spending.¹ The time when commercial outlets assault our senses with every indicator of holiday joy. The time when colorful catalogs overstuff our mailboxes in last-ditch efforts to convince us to purchase those ever-useless gadgets and gizmos that are clearly necessary to establish how much we care about our third-cousin’s daughter’s boyfriend’s son from a previous marriage.²  It’s Christmastime in the city. Clearly, you already know that.

As the actual holiday draws near, the ubiquitous indicators begin to manifest in offices and places of work—including things like decorations, music and office parties. And, as those of you who’ve been reading this column for a while can guess, all these ambassadors of good tidings and cheer can mean employment law liability for even the best-intentioned employer.

Yes, Virginia, there is a Santa Claus—but he’s subject to anti-harassment and discrimination laws. These include the laws requiring reasonable accommodation of religious beliefs and laws prohibiting harassment or discrimination based on religion. In today’s ever-more-secular society, all of these are implicated by the holidays. And even the most vigilant employer can unwittingly run afoul. Keep the following in mind, however, and you might be able to prevent a season of joy from becoming the precursor to a lawsuit.

The company holiday party

Once the hallmark of company events, liability for intoxicated employees’ acts seemingly neutered the company holiday party over the last decade. From the employment law perspective, January seemed to always bring a distinct uptick in sexual harassment claims. Apparently, the comingling of overworked employees and spiced cider tended to promote a type of “collegial interaction” among certain coworkers that was unwanted and offensive to some. The holiday-party-turned-Tailhook left employers dealing not only with awkward coworker relations but with sexual harassment suits.³ In planning and putting on a holiday party, remind employees of their obligations under the company’s alcohol policy, reemphasize your expectations of behavior, and plan an event in an environment conducive to professional conduct. You might also want to consider providing transportation.

Religious speech

For many employees, the holiday of choice is Christmas. But for non-Christian employees, this time of year brings different holidays and a time to celebrate and honor their beliefs. Employment law tensions can result in two primary ways from our diversity: Employee discussions of different religious observations and employees’ holiday decorations.

The first can result in liability when an employee crosses the line by engaging in conversations that are derogatory toward another’s belief system, or if the conversation is of a proselytizing nature. This is especially true for supervisors, whose comments or statements can be used as evidence of bias by an employee who is later terminated or denied a job opportunity. It’s important for employers to clearly communicate their expectations regarding such potentially harassing conduct and to train supervisors and managers to monitor and respond to such discussions when they occur.

Because it’s a time for celebration, many employees bring decorations and/or religious symbols to the workplace. While the laws prohibit religious harassment, you need not tear down the decorations and torch the Christmas tree quite yet. In its recently issued guidance on the subject, the Equal Employment Opportunity Commission noted that decorations celebrating a religious belief need not be taken down because an employee objects to them. Nor does an employer have to provide equal time and space for decorations reflecting beliefs of other religions. But do ensure employees don’t bring items or symbols that are derogatory toward another’s religious beliefs to work.

Religious accommodation

Our laws require that one’s religious beliefs be accommodated unless doing so would constitute an “undue hardship.” This includes not only hard costs, but also burdens on other employees. At this time of year, employees may need schedules changed or time off for religious observance. When faced with these types of requests, employers shouldn’t question the validity of the belief. Nor should employers automatically conclude that such an accommodation constitutes an undue hardship because the employee is “really needed.” What an employer can do, however, is train managers and supervisors about the obligations to provide accommodations, how to identify a request for a religious accommodation, and consult with someone familiar with these issues before denying a request for a religious accommodation.

By keeping an open mind (and eyes and ears) throughout the holiday season, your company and its employees can enjoy good tidings and cheer without the potential for post-holiday lawsuits.

¹This year, every retailer in America is whispering, “From your column to God’s ears!”

²The newest member of the ever-changing American extended family!

³It’s apparently one thing to end up with a lamp shade on your head, but quite another to be groped while sitting on Santa’s lap as he lecherously proclaims, “Ho, ho, ho!"

This column is not intended as legal advice, nor is it intended to form an attorney-client relationship with the author. You should consult your own counsel for the purposes of receiving legal advice regarding any of the issues raised in this column.