The article has been reviewed December 2019 and information is up-to-date.
The holiday season is a festive time to be shared with family, friends and even co-workers. Many employers also join in the celebrations by allowing employees to put up decorations and exchange gifts. Employers also like to host holiday parties filled with food, music, and alcohol. Sometimes, however, these activities can create legal liability for employers, particularly public entities. We present here a few tips and reminders that can help employers avoid liability without spoiling their employees’ holiday fun.
As the Second Circuit Court of Appeals has aptly stated, “No holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays.” (Skoros v. City of New York) Before decking the halls, employers should consider the location of holiday decorations. Employers who plan to decorate common work areas should strive to avoid the appearance of endorsing one religion over another. For example, if a nativity scene is displayed in the reception area or lunch room, the employer may be perceived as favoring the Christian religion. Some employees may this find offensive. Therefore, employers who wish to decorate the workplace should use non-religious, winter themed decorations such as snowflakes, snowmen, candy canes, holly, and gingerbread houses.
Since non-religious decorations are permissible, there is always debate over whether a Christmas tree is a religious symbol. While a decorated tree may have religious connotations for some people, the U.S. Supreme Court has determined that a Christmas tree is generally a secular nonreligious symbol. This view was also adopted by the EEOC. Thus, employers may include Christmas trees among their decorations even if an employee objects. Nevertheless, for purposes of promoting positive employee relations, employers should be sensitive to the diversity of their workplace. Thus, even if you have a tree, ornaments with religious connotations, such as crosses, angels, or nativity references should not be allowed.
Another, albeit much more risky, approach to holiday decorations is to include religious and nonreligious decorations representing a diverse set of cultural beliefs. In determining whether a public entity’s holiday and seasonal display that attempts to include all types of religions and beliefs conforms with the Establishment Clause, federal courts consider three factors: (1) whether the display is noncoercive; (2) whether the display does not give a direct benefit to religion in such degree to establish or tend to establish religion; and (3) whether the display conveys a message to the reasonable observer that the combined display was an effort to acknowledge cultural diversity. (See American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler)
Employees who wish to decorate their own personal workspaces with Christmas, Kwanzaa or Hanukah themed decorations present a more difficult question. Prohibiting employees from displaying religious holiday themed decorations in their own workspaces may give rise to claims of violation of free speech and religious expression. Also, because the law requires employers to accommodate religious beliefs, employers should not try to suppress religious expression in an employee’s personal workspace unless it creates an undue hardship on business operations, or if it is visible to the public in a way that implies the agency’s endorsement of religion. (Berry v. Department of Social Services.)
Finally, mistletoe should never be allowed in any area of the workplace including individual workspaces because it could lead to sexual harassment or hostile work environment claims.
For many, the holidays are a time for religious observance. For example, a Christian employee working the night shift may ask for the evening off to attend Christmas Eve mass, a Jewish employee may request time off to observe Hanukah, or a Muslim employee may ask to have a break scheduled after sunset when fasting ends during Ramadan. Both federal and state discrimination laws require employers to accommodate their employees’ sincerely held religious beliefs, practices, and observances. Thus, employers who are confronted with requests for time off should try to accommodate them unless doing so would impose undue hardship. Accommodating an employee may mean changing the employee’s schedule or allowing the employee to switch shifts with a co-worker.
The traditional holiday gift exchange — where one “Secret Santa” employee gives a gift to a randomly assigned employee — has largely been replaced by the “white elephant” gift exchange. Employees favor this type of gift exchange because it is fun and the gifts up for grabs are often humorous. This game, however, can easily turn into blood sport as employees become competitive and even downright vicious towards each other in their quest for the best gift.
In order to ensure fun for all employees, the announcement of a gift exchange should include language reminding employees to select gifts appropriate for the workplace. For example, employees should be discouraged from buying items that contain profane, graphic, or sexual content. In addition, employees should be reminded that the gift exchange is a festive occasion where everyone should be treated respectfully. A very modest limit on the cost of such gifts should be established, such as $10 or $15.
Despite the popularity of gift exchanges, some employees may choose to give individual holiday gifts to coworkers. While this may bring joy and cheer to some, others may feel left out if they do not receive a gift. Some employees may see selective gift giving as signs of discrimination or retaliation. Aside from any sort of legal claims, selective gift giving may also create a tense workplace environment where employees’ feelings are hurt. While employers should not require employees to bring gifts for everyone, employers may still create other gift giving guidelines or restrictions. For example, employers can create and enforce policies that require employees to exchange gifts outside of the workplace during non-work hours.
In addition to holiday decorations in the workplace, some employees may feel extra festive and want to wear holiday apparel or accessories. Prohibiting employees from wearing holiday themed apparel may give rise to claims of violation of free speech and religious expression. Nevertheless, employers do have the right to make sure that any holiday apparel complies with internal dress code policies or standards of professionalism.
In one example of holiday apparel causing uproar, Emilia Sellick was an employee of the U.S. Department of Veterans Affairs. Every holiday season, she wore a “Christmas bell” at work and the bell would jingle every time she moved. One day, Emilia’s supervisor called her into his office and abruptly instructed her take off the bell. When Emilia asked her supervisor why she should remove her bell, he responded, “[b]ecause it annoys me.” After Emilia was not hired for a higher level position, she sued the Department alleging religious discrimination, among many other claims. She claimed that the “Christmas bell” incident was suggestive of discrimination. In the end, the court found that the incident did not warrant a reasonable inference of religious discrimination. (Sellick v. Agency-Castle Point)
The two biggest concerns for employers about holiday parties are potential legal liability from sexual harassment and drinking and driving. Because employees typically “let their hair down” during these events, they may not conduct themselves the same way they do at work. Also, alcohol clouds judgment. A luncheon rather than an evening event is more prudent for all these reasons. If a festive evening is the preferred celebration, employers may want to consider taking the following preventative steps to reduce liability.
First, employees should be reminded of the employer’s discrimination, harassment, and alcohol and drug policies. In addition, employers should designate a supervisor or manager to provide discrete oversight of employees during the party. For example, if alcohol is served, employers should limit the amount consumed by either issuing drink tickets to employees or stopping the service of alcohol well before guests start leaving the party. If an employee appears to have had too much to drink, a supervisor or manager can intervene and make arrangements for the employee to get home safely. Employers should also ensure that no underage employees, student workers, or interns are served alcohol. Finally, if a harassment complaint is made after the party, employers should make sure they promptly investigate it.
All of us at Liebert Cassidy Whitmore would like to come together to say Thank You and wish you a wonderful holiday season and a Happy New Year!