LIFE’S LESSONS* Winter 2014, Real Issues…Reconstituted Facts

EMPLOYMENT LIABILITY ISSUES AT THE HOLIDAY AFTER-PARTY GATHERING

‘Tis the season for holiday parties, and the headaches that result when staff fail to conduct themselves appropriately in a less formal setting. Advance planning can help minimize these situations, including a friendly reminder from senior management about expected behavior, arrangement for car service on standby to transport those who are too drunk to drive, and possibly even designating certain company representatives to be attentive at the party to inappropriate behaviors. But what happens when the official party ends? Is the company then relieved of further responsibility for the actions of its employees? Unfortunately, that is not always the case….

Antics After the ABC Co. Holiday Party

More than 200 people attended ABC Co.’s annual party. Richard, a mid-level manager, and two of his peers were still revved up when the official party ended at 11 pm. They invited some of the junior staff on their teams to meet them at Blizzard, a bar located a few blocks from the company party. The junior staff spread the word to some of their peers, and by midnight, 25 ABC Co. employees had gathered at Blizzard. Richard bought a round of drinks for the ABC Co. employees who were standing around the bar, and then joined a group of the junior staff in the corner of the room.

Shaneequa, a new employee on Richard’s team, was dancing with two others. Richard stepped in and joined her, dancing quite closely. They continued in that fashion, sometimes touching, for several songs before another junior staffer, Tom, pulled Shaneequa away. Later that night, Shaneequa approached Richard to say she was leaving. Richard leaned close and kissed her goodbye.

The Complaint to HR

Two days later, Shaneequa complained to HR that Richard had made unwanted sexual advances toward her at Blizzard, including grabbing and kissing her, and that she had felt trapped in his grasp until Tom stepped in to separate them. During the course of HR’s investigation, one manager, a close friend of Richard’s who had remained seated at the bar that night, said it appeared that Shaneequa was a willing participant in the dancing and other physical interactions with Richard. Tom and several of the other junior staff had a different perspective. They supported Shaneequa’s account and reported that Richard had been quite intoxicated. Tom explained he had stepped in to “rescue” Shaneequa because he knew her to be modest and naiive when it came to sexual interactions.

For his part, Richard acknowledged having had four or five drinks but denied he was intoxicated. Richard admitted he had danced closely with Shaneequa, but said she had been a willing participant. Richard noted that it was Shaneequa who had approached him when she was leaving – why would she do so if she found his behavior unwelcome? And why did any of this matter, since they were all out on their own time, not at a company function?

The After-Party Can Be an Extension of the Office

In this factual situation, it is likely that the gathering at Blizzard would be considered an extension of the company function. The staff had gathered there immediately following the company holiday party, at the invitation (direct or indirect) of Richard and two other managers. Richard had also bought the staff a round of drinks, which was another managerial gesture (even if the company was not picking up the tab). Given these ties, as well as the fact of Shaneequa’s complaint, the behavior that occurred at Blizzard now is necessarily ABC Co.’s concern.

Perceptions Vary, But Managers Are Accountable

Based on the information HR obtained during its investigation, it is not entirely clear whether Shaneequa led Richard on. That uncertainty is quite common in these types of situations, and HR does not actually need to resolve the issue. Regardless of what Shaneequa may or may not have done, it is reasonably clear that Richard did not conduct himself in a professional manner when he was at Blizzard. As the manager, he should have known better than to have made any advances toward Shaneequa. Further, at this point, it is clear that Shaneequa is uncomfortable with Richard’s behavior. ABC Co. has an obligation to address Richard’s conduct on two levels: to assure that he does not make further advances toward Shaneequa, and to prevent this type of incident from occurring with another ABC Co. employee in the future. ABC Co. must also take steps to ensure that neither Richard, his fellow managers, or any other ABC Co. employee retaliates against Shaneequa for making a complaint.

* In my years of legal practice, there are certain recurring issues that cross a range of industries and circumstances. This column presents a hypothetical factual situation as a vehicle to substantively review these recurring legal and employee relations issues.

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