Memo To Drunk, Handsy Coworkers At the Office Holiday Party: You're Still Legally Accountable For Your Actions

Levo.com—Chelsea Levinson
12.04.2017

With the recent barrage of sexual harassment allegations flooding the news, many companies are re-evaluating whether alcohol-fueled work celebrations are a good idea. In fact, the 2017 Holiday Party Survey Report found that fewer companies will be serving alcohol at their holiday parties this year: just 47.8%, down from nearly 62% last year. Some are calling this the "Weinstein effect."

However, focusing on alcohol misses the problem, according to Nina Frank, who handles employee-based harassment cases at the New York law firm Outten and Golden.

“I don't think I can say this often enough: Alcohol doesn't cause sexual harassment, or sexual assault, or rape,” she says. “Drunk people might have lowered inhibitions, but there is no causal relationship between drinking alcohol and sexually harassing or assaulting someone. The fault lies with the perpetrator, plain and simple.”

Frank understands why employers would be wary of encouraging binge-drinking among employees, but, she cautions, “I think removing alcohol from holiday parties is just another way to try to shift the blame from perpetrators, and instead blame it on ‘bad behavior’ or a culture of permissiveness and drinking. We all know that sexual harassment occurs whether people are drunk or sober — not serving alcohol at the holiday party does not address the real issue of harassment in the workplace.”

So, when it comes to your holiday work party, how do you know what behavior is acceptable, and what crosses the line? Frank answered our burning questions, and plainly laid out the need-to-know facts:

Are holiday work parties considered an extension of the workplace? Are they covered by sexual harassment law?

Holiday work parties have been held in some circumstances to be extensions of the workplace - especially if you are expected or required as a part of your job duties to attend the party, or if there are tangible job benefits from attending, such as networking opportunities. The same office power dynamics can play out at a party just like during a regular workday, and can often be heightened because people may feel less inhibited in a party atmosphere.

What type of conduct constitutes sexual harassment at a holiday party?

The same type of conduct that constitutes sexual harassment at work can count as sexual harassment at a work party. Anything from inappropriately sexual jokes, to unwanted pressure for dates and sex, to groping.

What do folks need to know to avoid crossing a line with their colleagues at holiday parties? (i.e. is flirting ok? Or should all conduct be kept professional?)

There is a lot of discussion right now about how this focus on sexual harassment will somehow stop flirting or office relationships. I find that to be ridiculous: sexual harassment, sexual assault, etc. is all about a lack of consent. If two consensual parties are engaging in flirting, great. But with sexual harassment, that's not the case, and one party is using the work environment or a power imbalance in order to make the other person uncomfortable.

Is there anything men can do to be bystanders and fight sexual harassment at work holiday parties?

Yes, speak up. If you see someone being harassed or groped at a party, don't just pretend like it didn't happen. You can step in and say that this behavior is unacceptable. Or, you can speak to the person being harassed and tell them what you saw and ask how they would like you to handle it. Be ready to support them in whatever way they need.

If a person feels that they have been sexually harassed at the holiday party, what should they do?

Although the reality is that there can be risks with reporting sexual harassment, reporting it can create a paper trail and can help protect you later if you experience any career consequences as a result of the harassment. You can report to a manager (if they are not the harasser themselves) or to your employer's HR department, but don't expect that they will automatically have your back or that there will be appropriate consequences for the harasser. Many employers say they have "zero tolerance" policies for harassment, but the reality is very different. If you feel you've been sexually harassed at the holiday party, speak to a lawyer about your options.