For many of us, the hustle and bustle of the holiday season means far more than Starbucks red cups, candy coated confections and snow covered landscapes enveloped in cascades of twinkling lights. For employers, the holidays often mean an increasing concern regarding holiday decorations and holiday parties. While decorations and parties can potentially have a positive effect on employee morale, they are often tempered by the competing interests of promoting diversity and inclusion within the workplace and the attendant risk of a religious discrimination claim. So how does an employer navigate its way down Candy Cane Lane without running afoul of state and federal civil rights laws?
In short, there are multiple routes the employer can take. The most conservative route would be to forgo holiday decorations (and parties) altogether. Though this may disappoint the more festive members of your staff accustomed to breaking out their ugly seasonal sweaters, it is consistent with your goals, as the employer, to effectively manage employee relations and mitigate your legal risk.
An alternative route would be for the employer to decorate the workplace, while precluding employees from engaging in their own decorating efforts. This allows the employer to maintain control over their winter wonderland. The key with this approach is that the employer should strive to avoid the appearance of endorsing one religion over another. For example, if a nativity scene is displayed in the reception area, your company may be perceived as favoring Christian religions, or the Christmas holiday — a perception which some employees (and customers even) may find offensive. Consequently, employers who opt to decorate the workplace should use non-religious, winter themed decorations such as snowflakes, snowmen, candy canes, gingerbread houses, etc.
What about a Christmas tree you ask? The U.S. Supreme Court has determined that a Christmas tree is generally a secular, non-religious symbol. This view was adopted by the Equal Employment Opportunity Comission (EEOC). Therefore, an employer may include Christmas trees among their decor, but again, in the interest of remaining sensitive to diversity, the tree should not be adorned with ornaments of a religious context such as crosses, angels or nativity references.
The third, and perhaps most difficult, route to navigate is permitting employees to decorate their own personal workspaces. If an employer allows employees to decorate, but attempts to prohibit employees from displaying religious themed decorations in their own workspace, violation of free speech and religious expression claims may result. Since employers are legally required 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 manner which implies the employer’s endorsement of religion.
Now that the decorating is out of the way, it is time to grab a glass of eggnog and relax. That brings us to our next topic: holiday parties. The two most significant concerns with holiday parties are the employer’s potential legal liability from sexual harassment and drinking and driving. The most effective way for an employer to detour around these roadblocks - should the employer not opt to simply forgo a party altogether - is to hold a luncheon or pot luck, onsite during business hours, for employees only, without the presence of alcohol. The employer can reference the gathering as a “holiday” party, without referencing any particular winter holiday, or alternatively, can refer to the gathering as a “year-end celebration.” For more on holiday parties, see our previous article here.
Want to learn more about the implications of holiday decorations and parties as it pertains to religious harassment and discrimination claims? Look for our four-part Diversity and Inclusion Webinar Series coming in Spring 2019.
Anissa works with employers to provide practical solutions to employment law and compliance matters. She provides employers with guidance pertaining to all aspects of employment law, including employee benefits, insurance, and HR policies and procedures.
Anissa works with employers to provide practical solutions to employment law and compliance matters. She provides employers with guidance pertaining to all aspects of employment law, including employee benefits, insurance, and HR policies and procedures. As a litigator, Anissa previously represented insurers and insureds in numerous aspects of insurance defense practices and insurance companies on coverage issues. Anissa now focuses her career in the corporate setting, with an emphasis on employment contracts, insurance, HR management, risk management and regulatory compliance. As part of the HR Solutions Team, Anissa is dedicated to educating employers of all sizes on employment law and compliance matters.
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