Bad Santa

Employers commonly throw holiday office celebrations this time of year to show employees that they’re appreciated. However, a recent case from a California appellate court demonstrates the problems that can also arise when conduct crosses the line. Brennan v. Townsend & O’Leary Enterprises, Inc., 199 Cal.App.4th 1336 (2011).

Though the court did not rule that the conduct qualified as sexual harassment because the conduct was isolated and not directed at the complaining employee, the conduct still put the company in the position of having to defend a costly lawsuit. No company wants to be in the position where they have allowed supervisors or co-workers to engage in offensive or vulgar conduct.

Bad Santa and Bachelorette Gag Gifts

Stephanie Brennan worked for an advertising agency as an account supervisor and vice-president. Over a period of about four years, the following instances occurred:

• Bad Santa: A manager dressed as Santa at a company holiday party asked three female employees to sit on his lap, and he then asked personal questions about their love lives. Brennan observed this behavior
• Bad Santa’s Helper: At the same party, Brennan’s supervisor wore a Santa hat with “b----” written across the front
• Bad Gifts: A female colleague brought a gag gift of a sexual nature from a bachelorette party to an office staff meeting where Brennan was present
• Bad Email: When a particular employee left the company, one manager sent an email to another manager that said, “Three down, one big-[chested], mindless one to go” about the employee. The manager accidently copied the departing employee on the email, and the employee then forwarded it to Brennan. Brennan believed the email was referring to her. The manager who sent the email was not Brennan’s supervisor
• Bad Comments: After she received the forwarded email, Brennan began asking around about the manager. She learned that he used extremely vulgar terms to describe a female client, called an employee “honey” and once told an employee who complained of harassment by a client to “just deal with it.” Brennan herself never witnessed these comments.

No Severe or Pervasive Conduct

The forwarded email prompted Brennan to sue her employer for sexual harassment, claiming a hostile work environment. A jury agreed and awarded her $250,000. However, a court of appeal eventually overturned that jury award.

Employers are liable when harassment in the workplace is sufficiently severe or pervasive so as to alter the terms and conditions of employment. Occasional, isolated or sporadic conduct does not create legal liability.

Also, if the conduct is not directed at the complaining employee, the conduct is usually considered less severe. If an employee sues based on conduct that is not directed at him/her, the employee will need to show that the sexually harassing conduct directed at others was in his/her immediate work environment and that he/she personally witnessed it.

In this instance, the court found that Brennan was never personally subjected to unwelcome physical contact, was never propositioned and no explicit language or verbal or physical harassment was directed specifically at her. The one email by a manager did not mention her directly, was not made by her supervisor and, though unprofessional and insulting, was isolated. There was no evidence that the manager or any other company employee made any other sexually derogatory comments about Brennan.

The conduct that Brennan witnessed, such as the Santa situation and the bachelorette gift, were isolated incidents occurring over a three to four year period and did not constitute continuous or pervasive harassment, according to the court. Further, the acts that she did not personally witness did not count at all toward her claim. To succeed in her lawsuit, Brennan was required to show that harassment directed to others was in her immediate work environment and witnessed by her.

Though the court overturned the jury award, this should not change how employers respond to these types of incidents in the workplace. The line between what is legal and illegal conduct is often a fine line, and employers should take all steps possible to avoid coming anywhere near that line. This employer was subject to lengthy litigation and a jury thought it had crossed the line before it eventually won on appeal. No employer wants to be put to that test.

Best Practices

• Inform employees that company policies are still in effect at work-sponsored or work-related holiday parties and other events, even if those events occur after working hours
• Enact and enforce policies that encourage professional and respectful behavior at work
• Regularly monitor your workplace culture and stop crude conduct at the first instance. Don’t wait until you think the conduct crosses the legal line
• Train supervisors to recognize and correct inappropriate behavior in the workplace
• 2011 is a mandatory supervisor sexual harassment prevention training year for most employers with 50 or more employees. The original requirement went into effect in 2005 and training must occur every two years