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EEOC presents advice on harassment by third-parties just in time for the holiday season

As with any complaint, employers must take all allegations seriously

This is a popular time of year for many companies to hold a holiday office party. Such events can establish camaraderie between employees, offer an opportunity to recognize the success of the past year, and motivate employees to work hard for the employer in the future. One practical tip that many follow to reduce potential liability with a holiday party is to allow staff to bring their significant other, another guest, or even clients to the big event. This may be done in hopes of curtailing any questionable behavior that might result in a charge of unlawful harassment and making sure everything remains “grandma-approved.”

Just in time for the holiday office party, the Equal Employment Opportunity Commission (EEOC) reminded the public about an employer’s potential liability when guests behave inappropriately. In an informal discussion letter released to the public on Nov. 7 the EEOC addressed the topic of harassment by third-parties. The letter, specifically answering questions pertaining to citizen harassment of law enforcement officers, highlights that the employer’s response to harassment is most significant. The EEOC advises that employers can avoid liability by taking reasonable steps to prevent harassment by third parties. The reasonableness of that response depends on the totality of the circumstances. Elements that may be considered include “the nature of the alleged harassment, the specific context in which it arose and practical limitations on the employer’s ability to respond to the harassment.”

Undoubtedly, employers may very likely confront circumstances of third-party harassment of employees at the office holiday party. Guests and clients who are invited to attend are just as susceptible to unruly behavior as those on the company’s payroll.

A popular example in the employment law world is Stathatos v. Gala Resources, LLC,. In defeating summary judgment, the plaintiffs presented evidence that a client at the holiday party aggressively grabbed and chased the plaintiff throughout the night. Rather than help the plaintiff, a supervisor who was approached over this conduct teased the plaintiff by suggesting the client liked her and wanted to date her. Employers confronted with similar circumstances should know that this is unlikely to be interpreted as a reasonable response by the EEOC investigating a charge.

As with any complaint of harassment or other sexual discrimination, employers must take any allegations seriously. Not only should the employer conduct a prompt investigation, but it must implement a reasonable response to any conclusions it draws. Failing to take either of these basic steps will very likely risk leaving the employer in a position that is difficult to defend if an employee decides to file suit.

Contributing Author

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Mark Spognardi

Mark Spognardi is a partner at Arnstein & Lehr. He focuses on representing management in traditional and non-traditional labor and employment law matters, including counseling,...

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