Halloween: The Lawsuit Dressed as a Holiday

October 22, 2019

Halloween starts the office holiday party season, when employment lawsuits against medical practices can spike.

Halloween starts the office holiday party season, when employment lawsuits against medical practices can spike. These are some of the basic rules every physician and practice manager should know to manage holiday risk.

Halloween Specific Issues

This seems to be an area of extremes; many offices do little or nothing more than putting out a bowl of candy while others set up their own little shop of horrors. In addition to the rules below that apply to every professional holiday celebration, Halloween presents the additional issue of inappropriate costumes and décor. Our current sensitive social and political environment require employers set, inform and enforce firm boundaries to manage this risk. Failing to do so can result a variety of claims including hostile work environment, discrimination, intimidation, and sexual harassment.

Make it clear that whether it involves costumes worn during the day at the office, or a more formal party after hours, common sense and established professional standards should be maintained and that any costumes that cross your subjective line will need to be changed or removed. The basics are easy:

-       Any disparaging portrayal of race, religion, gender, sexual identity or national origin

-       Anything overtly or explicitly sexual, this leaves out at least a third of the costumes in your neighborhood Halloween store like “naughty” fireman, cowgirl, policeman etc.

-       Excessively violent or bloody costumes or those that involve weapons and other accessories that may mistakenly alarm others

Lastly, apply the same standards to any décor items and think carefully about what you do you privately as well in the age of social media. We have all seen national exposure and negative publicity afforded to those whose old photos of them in costumes deemed offensive by current standards are publicized, often without context, with disastrous effect.

Know The Rules that Apply to Every Office Celebration

Of course, Halloween isn’t the only holiday risk, just the most current one, so be sure to consider the following strategies to protect your employees and your practice from these risks at any office party you may be planning.

1)    Make It Optional. Don’t compel attendance either explicitly or through pressure and disparate treatment. Be explicit that it is optional in any invitations and communications with your staff.

2)    Enforce professional standards. Make it clear that you expect all attendees (and  their guests, if permitted) to observe the rules and norms of speech, conduct, sexual harassment, and etc. in your employment policy manual  that help avoid workplace incidents of bias and discrimination. This includes all owners, executives and physicians, who often cause the problems themselves.

3)    Make it inclusive. You may choose to call it a “holiday” or a “Christmas” party etc. but consider avoiding themes and activities that are overly religious, controversial or that involve inappropriate contact, speech and behavior. Real examples we’ve seen include hanging Mistletoe, Cards against Humanity, and drinking games like beer pong. Likewise, be aware of physical limitations of staff members in terms accessibility. Not everyone in the office will be willing or able to climb that rock wall or run that obstacle course. 

4)    Be Insured. Your practice should have high limits of general liability, worker’s comp as well an EPLI policy in place in the event of an exposure.

5)    Limit Alcohol consumption and keep them fed.  A significant number of the exposures at holiday parties involve alcohol, consumption. If your celebration includes it avoid having an open bar or allowing guests to serve themselves without limit. If you serve alcohol you must also serve food. This slows consumption, keeps guests busy and helps keep them from being “over-served”.  Enforce rules about anyone appearing intoxicated being cut-off and make this known to all guests in advance.

6)    Consider Offering Transportation. Any employee that feels impaired should be told they will be provided transport. The cost of providing or reimbursing staff for the use of rideshare services like Uber and Lyft is always less than a lawsuit.

7)     Decide if you need a dress code.  I’ve seen sexually suggestive Christmas and Chanukah sweaters as well, so don’t assume other holidays don’t present the same risks or that all staff members have the same standards in their personal attire. You may be surprised by what people wear when not in scrubs.

Finally, lead by example and show up. This is an opportunity to express your gratitude and celebrate your joint achievements, and set the tone as a manager.

Ike Devji, JD, has practiced law exclusively in the areas of asset protection, risk management and wealth preservation for the last 16 years. He helps protect a national client base with more than $5 billion in personal assets, including several thousand physicians. He is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter. Learn more at www.ProAssetProtection.com.