Time For Your Sexual Holiday Party

Well, your company is certainly not intending for it to be a sexual holiday party.   But, truth be told, it wouldn’t be the first story of an off-site end-of-the-year holiday shindig (with complimentary alcohol) that got a bit out of control, and, more importantly, offensive to someone.   Now, I’m not trying to be Ebenezer Scrooge, and don’t mean to skip right over Thanksgiving, but in keeping with this week’s apparent blog theme of cameras and booze, I thought I’d offer another cautionary tale for those planning the next employee appreciation party for the upcoming December holidays.

What prompted this public service reminder?  A federal court decision issued this month from upstate New York in the case of Shiner v. SUNY at Buffalo, et al. (11-CV-01024).   Plaintiff was a clerk in the instrument management services department at the University of Buffalo Dental School.   Like many of you, the school holds an annual department Christmas party for its staff.  December 21, 2010 was the date for their annual soiree, held at a local bar.  

Plaintiff had been slightly uncomfortable with the behavior at prior holiday parties (and had previously raised her concerns with school officials), but decided to attend this one anyway, and was seated near two supervisors who spent the night allegedly making “inappropriate and sexually explicit remarks, comments and gestures.”  Things took an apparent turn for the worse, as Plaintiff alleges that one of the supervisors “grabbed her breasts, chased her around a table, inserted his tongue in her ear, and forcefully pinched her ribs when she refused to submit to his requests.”

Post-party complaints were made to the school’s internal employee relations office, and various employment actions were eventually taken by the school as a result.   Plaintiff later sued, alleging sexual harassment based on a hostile environment theory, and the school sought to dismiss the case immediately.   The school argued that no discovery was necessary, and relied on the legal “Faragher/Ellerth defense”, which absolves an employer of liability in certain cases if: “(1) the employer exercised reasonable care to prevent and correct any harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise.”

The court denied the school’s application for dismissal at this early stage, ruling that there were factual issues that had to be resolved for the school’s defense, such as whether plaintiff had sufficiently complained earlier about prior holiday parties, and whether the school waited too long before taking corrective action as a result of the incidents at the most recent December 2010 party.  Both sides will be gearing up for a protracted litigation.

Employer Take Away:   What should you as an employer take away from this development?   

Procedurally, the Shiner case is in its infant stage, and no determination on the actual merits of the claims or defenses has been made yet.   In fact, this case did not even depend on social media use by anyone.   So, what’s my point?   A couple:

1.         You should know by now that workplace boundaries have expanded beyond the traditional four walls of your office, and social media has gone even further in expanding those boundaries.   Make sure that your workplace policies (including harassment, discrimination, and violence in the workplace) expressly apply to work events occurring on and off your company’s premises.   The holiday party here may have been out at a local bar, but, as the court noted, it was still an “employer-funded party”.

2.         You should keep in mind that there may be an after party on social media.   Facebook, Twitter, Instagram, all have the potential for keeping the post-party communications – and rather unflattering pictures – going long after last call.    For that reason, you need to be aware of all concerns raised by your employees (through whatever form or forum those concerns are raised) about inappropriate conduct that may be taking place anywhere by another one of your employees.  

And make sure that your social media policies refer back to those same policies governing harassment, discrimination and violence in the workplace.  Most critically, make sure you’ve sufficiently communicated and trained your employees – particularly your supervisors and managers – about these principles, and how quickly a generous corporate gesture and nice evening can turn into significant corporate and personal liability.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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