Avoiding offensive costumes may seem like a no-brainer, but employees don’t always act reasonably

Halloween is just around the corner. Many workplaces will host costume parties and Halloween-themed events to help employees let loose and boost morale. While often a great idea, alcohol and questionable costumes create nightmarish risks for employers, raising issues that employment lawyers and courts have dealt with for all to many a year.

It might seem obvious that you should not drink and drive, make inappropriate comments to coworkers, or wear offensive Halloween costumes, such as blackface — especially given the negative public reaction when old photos of the prime minister in blackface surfaced. But employees do not always act reasonably.

Employers should know the risks of hosting a party and employees must be conscious of their behaviour at off-premises events, in the same way as they are with their social media use.

Employers have a duty of care to their employees wherever such a party is held — our firm, for example, had an event last week in Nicaragua, where societal norms are rather different than here.

In the case of Hunt v. Sutton Group Incentive Realty Inc. the employer hosted a party on its premises where an employee drank heavily from an unsupervised open bar. She then went to a pub and continued drinking. On her drive home, heavily intoxicated, she got into a car accident suffering severe injuries. She sued her employer, and the court held that the employer owed her a duty of care extending beyond the workplace’s physical premises. The court also held that an employer must take active steps to ensure its duty of care is properly discharged.

This means that offering free taxis or other transportation home is insufficient to discharge their duty. Ultimately, the court ordered the employer to pay the woman almost $300,000 in damages. An ominous warning for employers.

Employers should also be aware of human rights concerns with addiction. Alcoholism is a disability, which is a prohibited ground for discrimination under the human rights legislation. If employers know or have reasons to suspect that an employee suffers from alcoholism, they must take steps to accommodate that employee in social events where alcohol is present.

In Huffman v. Mitchell Plastics, an employee became intoxicated at an office party and made threats and sexually inappropriate comments to colleagues and their spouses. He was terminated and brought a human rights claim arguing that the employer ought to have known about his alcoholism but had failed to accommodate him. The Tribunal found there was insufficient disclosure of his disability to trigger the employer’s duty to accommodate. But the case remains a cautionary tale to employers of the liability they could incur if they were aware or ought to have been aware of an employee’s substance abuse or addiction.

Given the substantial risks, employers should take steps to mitigate their potential liability:

  • Avoid unsupervised open bars;
  • Consider using drink tickets to limit and monitor the amount of alcohol consumption;
  • Provide food and non-alcoholic beverages;
  • Provide alternate transportation so employees do not drink and drive; and prevent them from doing so, even if that means taking their keys and calling the police (both permissible in those circumstances);
  • Remind employees that all workplace policies remain in force;
  • Stop serving alcohol a few hours before the event is scheduled to end;
  • And look into any possible accommodation for employees who suffer from addiction.
Halloween costumes introduce another issue. While typically in good fun, distasteful costumes can be offensive, disturbing and even amount to harassment or bullying. For example, dressing up as a religious figure, overly sexual character, or a culturally insensitive trope can attract complaints of harassment or bullying if your coworkers feel offended or religious discrimination if their religion appears to be mocked. Employers have a right to enforce a dress code and Halloween parties are no different.
Employers should not assume that their employees will always exercise sound judgement. Prior to hosting a costume party or Halloween themed event, employers should remind employees of what costumes are appropriate. Also, inform employees that there could be consequences, including termination, for egregious and inappropriate behaviour. Two years ago, a Toronto District School Board teacher was fired for wearing blackface as part of his Halloween costume. Clearly even employees in roles of heightened trust and responsibility make bad decisions.

If an employee’s off-duty behaviour is so egregious that it could cause reputational damage to the employer, the employer has a right to discipline and even terminate the employee. While it might seem like an invasion of privacy, employees should act reasonably in their personal lives and refrain from posting their own inappropriate behaviour on social media.

Ultimately, employers should be conscious of their duty of care and employees, that there are consequences for behaviour which embarrasses their employer or coworkers.