Lawsuits Are Spookier Than Halloween

Employers have legitimate reasons to be scared of Halloween – and not just because of the clowns. OK – it may be because of the clowns, and other costumes employees may choose to wear. If you want to treat your employees to a Halloween dress-up event, here is how to avoid getting tricked by a discrimination or harassment complaint later.

One person’s funny may be another’s claim of harassment. Halloween celebrations at work can be great for team building and for people to show off their creative or humorous sides. A great choice of costume to a dance club or Halloween party with friends, however, may not be appropriate for the office. A “naughty nurse” outfit or bloody scrubs may offend people in or out of the healthcare field. Some noteworthy bases for past lawsuits that made headlines were pregnant nuns, illegal aliens, donning blackface makeup, or celebrity shooting victims. A choice that is particularly problematic recently has been political costumes. There is no protected category for “political beliefs” under state or federal law, but politics can be closely linked to religion, socio-economic issues and other subjects best not discussed at work. Comments – particularly negative ones – can lead to hurt feelings and people feeling bullied. The problem is only exacerbated if the negative comments come from a member of management.

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Communicate expectations clearly and well in advance. Because of the risk of potentially offensive costume choices, announce in advance what the parameters are. Remind employees that this will all be happening at work – and that the employee handbook is still in effect, even though the dress code may be modified for a day. It is important to stress that “offensive” costumes, or any that might harm the reputation of the company (particularly if customers or the public will see employees) must be avoided. Let employees know that if they have any concerns, they should clear the costume with Human Resources in advance. If applicable, you should also stress that costumes need to be safe to the employee and others. If the costume could get caught in machinery, catch on fire or present a risk of heat stroke, it is likely best to point out those concerns before the employee shows up in what they believe to be a politically correct but personally dangerous outfit.

Train managers and be prepared to take appropriate discipline. It may be a buzz kill, but it is extremely important to tell employees that failure to follow the guidelines (which are based on the employee handbook) may lead to discipline, up to and including termination of employment. Discipline should be consistent and appropriate. Sexual harassment, for example, is just as forbidden on Halloween as it is the rest of the year, and the penalties should be the same.

Your front line of defense at the event – like most of the time – will be your supervisors and managers. They need to model good behavior, know the rules, and be capable of stepping in themselves or contacting Human Resources before a costume issue escalates. Managers should be informed that they are expected to act professionally, perform their jobs and be proactive in spotting potential problems. If possible, devoting a few minutes at the regular manager meeting to emphasize the importance of their role would be a good idea.

Know your company and employees. When you look back at last year’s Halloween party, if you have an involuntary shudder; or if the legal department breaks into maniacal laughter when you suggest a party this year, it may be best to rethink the plan. You cannot guarantee that no one gets offended (and that would be boring anyway), but you can have fun without dramatically increasing your risk of employment claims. A good alternative may be that no one dresses up except children or pets. Let the kids trick or treat from office to office after lunch and have a costume contest for them and/or the pets. If all else fails, decorating the office and having a spooky potluck always works, but watch out for the chunky vomit guacamole or the kitty litter cake (it’s worth a Google).

Todd R. Wulffson

Todd R. Wulffson
Todd R. Wulffson is the Orange County office managing partner at Carothers DiSante & Freudenberger LLP. He has focused his practice on counseling and defending businesses in labor and employment matters for close to 30 years and was also the general counsel and SVP of human resources for a public company for several years. He can be reached at twulffson (at) cdflaborlaw (dot) com or (949) 622-5842.

Todd R. Wulffson

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